INTRODUCTION
I. THE FLIGHT OF THE EXCLUSIONARY RULE
II. ACCURATE FACTFINDING AND SUPPRESSED EVIDENCE
A. Opening the Door to Suppressed Evidence
B. Contradicted Inferences or Proof
C. The Inference That Suppressed Evidence Does Not Exist
D. When Defendants Waive Protection Against Suppressed
Proof
III. THE INTEGRITY OF THE TRIAL PROCESS AND ETHICAL RULES
CONCLUSION

INTRODUCTION

When the exclusionary rule prevents the prosecution from using
evidence necessary to bring a case to trial, the rule deters illegality
while raising no issue about how it might interfere with usual
factfinding processes. However, when a case proceeds to trial although a
court has suppressed some prosecution evidence, courts need to decide
the extent to which the defendant may benefit from the absence of the
proof without opening the door to its admission. The exclusion of any
relevant evidence raises similar questions, and courts often say the
exclusionary rule is a shield from suppressed evidence, but not a sword
with which the defendant can inflict damage on the prosecution's
remaining case. (1) Nonetheless, this Article argues courts err when
they analyze whether the defendant "opened the door" to
suppressed evidence with a metaphor appropriate for rules excluding
evidence for different--and less weighty--reasons than encouraging
respect for individual constitutional rights. Employing usual
evidentiary tests for opening the door unduly diminishes the
effectiveness of exclusion as a deterrent of police misconduct when
investigators expect the potential evidentiary payoff will not be
necessary to bring the case to trial, but will nonetheless be useful to
obtain a conviction.

Whether the defendant has opened the door to suppressed evidence is
a related, though distinct question from what the boundaries of the
exclusionary rule should be. The Supreme Court has defined the scope of
the exclusionary rule to the extent of holding suppressed evidence can
be used to impeach a testifying defendant, but not to establish the
prosecution's case-in-chief or to impeach other defense witnesses.
(2) Besides the direct questions of scope are questions about how
defendants may exploit the absence of suppressed evidence before a court
will hold that the defendant opened the door to its admission. This
Article criticizes recent decisions finding a defendant opens the door
to suppressed evidence merely by highlighting the absence of that
evidence or by offering other evidence to which the suppressed proof is
relevant rebuttal. (3) It argues those decisions erroneously assume
relevance, probative value, and unfair prejudice are the only factors
that should influence this decision. While this is true enough for
evidence originally excluded to promote accurate factfinding, it is not
true for evidence excluded to promote other policy objectives or to
respect other principles.

Whether and how a party can take advantage of the exclusion of
suppressed evidence is a question whose answer depends upon a contextual
analysis of how "opening the door" decisions affect the
deterrence promoted by exclusion in the first instance, not upon whether
they divert the factfinder in its quest for truth. Thus, courts
contravene the prohibition against impeaching defense witnesses when
they invoke Rule 403 of the Federal Rules of Evidence to preclude the
defendant from admitting evidence that contradicts suppressed proof,
because preclusion has the same effect as rebuttal. Similarly, courts
improperly extend the prosecution's use of illegally-obtained
evidence when they allow it to discourage counsel from arguing
inferences the suppressed proof contradicts by permitting its admission
if he does. In either case, the prosecution quickly learns obtaining
evidence illegally has a payoff in excess of that contemplated by the
Supreme Court. Prosecutors routinely find the suppressed evidence useful
to deter or rebut defenses even when not introduced in the
prosecution's case-in-chief or to impeach a testifying defendant.
(4) This is precisely the result rejected by the Court in James v.
Illinois because of the increased incentive to obtain the evidence
illegally. (5)

It may seem obvious that factfinding accuracy or completeness is
not itself sufficient reason to admit evidence whose exclusion was
mandated in the first instance despite interference with--rather than in
pursuit of--those goals. However, courts too frequently forget the point
when they hold fairness or the integrity of the trial process justifies
holding a defendant has taken improper advantage of evidence's
suppression and thus invited its admission. (6) Using muscle memory to
rule, they interpret fairness as adversarial fairness, which always
counsels in favor of admitting relevant rebuttal. Similarly, they
interpret the integrity of the trial process to require advocates to
refrain from using evidence's exclusion to (mis)lead the factfinder
to a conclusion inconsonant with the excluded evidence. That approach,
too, always counsels in favor of admitting as rebuttal the evidence that
was excluded in the first instance. Lost in the analysis is the effect
holding the door opened has on the goal promoted by the exclusionary
rule. Courts apparently assume no damage will be done if they allow the
defendant to use exclusion only as a shield from illegally-obtained
evidence, but not as a sword to advance an inference or elicit proof
contradicted by the excluded evidence. (7)

This Article shows the question is more complex than the sword and
shield metaphor suggests. Discouraging the defendant from arguing
inferences from the proof's absence, or from presenting his own
evidence that excluded evidence may contradict, imposes a cost on the
defendant and creates a benefit for the prosecution that can interfere
as unacceptably with the goals advanced by exclusion as allowing the
evidence in the first instance. That is the lesson of ordinary evidence
rules that, like the constitutional exclusionary rule, justify exclusion
for reasons besides factfinding accuracy. They prohibit uses of evidence
that interfere with goals besides accurate factfinding even when the
protected party advances claims that make the excluded evidence
particularly probative. As those rules show, there can be no general
"opening the door" standard because the issue depends on the
contextual effect on exclusion's goal. Questions about whether the
door has been opened require courts to consider the same kind of factors
that enter into framing exclusionary rules in the first place, not
general notions of fairness and integrity or the metaphoric difference
between using exclusion as a shield, not as a sword.

Part I shows how a court recently used a finding that counsel
opened the door to weaken--indeed, effectively to ignore--a holding by
the Supreme Court that specifically prohibits the use of suppressed
evidence, even as impeachment or rebuttal. By failing to recognize how
suppressed evidence is useful to deter as well as rebut defenses, courts
fail to appreciate how ruling that a defendant opens the door to
suppressed evidence by capitalizing on its absence can give the
prosecution much, if not all, of the benefit that exclusion was meant to
prevent.

Part II shows how courts apply an improperly broad view of what it
takes to open the door to suppressed evidence when they treat such
evidence as if it was excluded for reasons of factfinding accuracy.
Instead, such decisions need to be made specifically to avoid
undermining the goal of exclusion that has already been placed ahead of
factfinding accuracy, even as some limited circumstances support finding
defendants waived their protection against illegally-obtained evidence.
The idea of taking unfair advantage of exclusion must respect the
compromise to factfinding that the Court holds necessary to deter
illegal investigative actions. Even just a few cases improperly holding
counsel opened the door have a dramatic effect unless explicitly
repudiated. The threat of forfeiting the defendant's immunity from
suppressed evidence encourages defense counsel to avoid taking any
advantage of the absence of the proof a court might possibly interpret
as opening the door. Therefore, the prosecution will always benefit from
foreclosing potential defenses unless courts reverse course to make
clear how defendants can exploit the absence of the suppressed evidence
without risking the evidence's admission.

Part III shows that a narrower view of opening the door in this
circumstance is not at odds with the integrity of our factfinding
process nor with the advocate's accepted ethical role within it.
The integrity of that process is relative to the limited task of jurors:
considering only the universe of evidence admitted at trial, rather than
pursuing a self-directed quest for truth. Restrictions on the evidence
juries hear reflect the systematic pursuit of justice of which accurate
factfinding is not the exclusive component. Jurors, lawyers and judges
fulfill critical yet limited roles in this pursuit even when they reach,
advocate, or countenance verdicts that deviate from accurate factfinding
in pursuit of other goals. Allowing the defense to emphasize the absence
of suppressed evidence, therefore, can be a necessary part of the
integrity of the factfinding process, not its antithesis.

I. THE FLIGHT OF THE EXCLUSIONARY RULE

The assumption that defendants open the door to suppressed evidence
when they increase its probativity by capitalizing on its absence to
offer contrary evidence, or to argue a contrary inference, can
effectively eviscerate the deterrent effect of exclusion. As a practical
matter, the "opening the door" policy has its largest impact
on incentives to conduct improper custodial interrogations, which are
typically undertaken after the prosecution concludes it has or will have
sufficient evidence besides that obtained from the interrogation to take
the defendant to trial. (8) Still, the courts' approach informs law
enforcement's calculus to take other improper investigatory
measures whenever suppressing their fruits does not eliminate any
expected payoff at trial. (9) By defining what opens the door to
admission of the suppressed proof, the courts decide what steps
defendants must forego at trial to avoid the suppressed evidence. By
requiting the defendant to forego those steps or invite the evidence,
the courts define the prosecution's payoff for having undertaken
the unlawful investigatory measure even if the defendant refrains from
opening the door to the evidence. Acquisition of the unlawfully-obtained
evidence benefits the prosecution whether introduced to rebut or
brandished to deter the defense case. So its possession is always
potentially useful at trial unless the prosecution cannot survive a
motion for judgment of acquittal without it.

The perception, however, that defendants taking advantage of the
absence of suppressed evidence justify its admission is powerful. It has
led courts to deny that suppressed evidence is illegally used when they
rely on it to prevent defendants from introducing contrary proof as
misleading, even though the Supreme Court has specifically prohibited
introducing the suppressed evidence as impeachment or rebuttal. Although
those courts deny the prosecution benefits from illegally-obtained
evidence it has not introduced, its utility to deter a defense case is
manifest. As a matter of logic and now well-accepted economic theory, a
foregone opportunity to gain a specified amount represents a cost
potentially as significant as payment of that amount. (10) Economists
often concretize this concept of an opportunity cost by comparing a
decision maker's decision to reject an offer to not engage in an
activity with a decision to pay the specified amount to engage in the
activity. (11) In either case, the decision is costly, potentially
equally so. By the same token, the defendant suffers a cost at trial
(and the prosecution receives a benefit) from the prosecution's
possession of illegal evidence whether he avoids its admission by
foregoing otherwise advantageous defenses or suffers its admission in
response to opening the door by presenting those defenses. That the
defendant will presumably choose the strategy that minimizes the impact
of the illegally-obtained proof does not prevent the prosecution from
realizing its benefit--to deter or rebut defenses--despite the
defendant's choice.

The substantial value of unlawfully-obtained evidence to deter
defense evidence was made glaringly obvious in the recent case of People
v. Johnson (12) in which the court, relying on suppressed evidence,
undertook itself to prohibit a defendant from offering evidence whose
rebuttal the exclusionary rule prohibits. There, prosecutors sought to
exclude defense evidence suggesting the crime for which they charged
Johnson was committed by a darker-skinned, similar-looking man, perhaps
Johnson's cousin, Thaddeus. (13) Prosecutors originally charged
Johnson and an accomplice with a string of five gas station robberies
including one involving an attendant named Claussen. (14) They asserted
all the robberies were committed with a "mode of operation"
that was "virtually the same." (15) After Claussen failed to
identify Johnson in a lineup, instead noting his robber was
darker-skinned, prosecutors dropped the Claussen robbery from the case
against Johnson while retaining it in the case against Johnson's
accomplice, (16) Johnson now sought to call Claussen to testify to the
exculpatory non-identification. (17) The prosecution objected, noting
Johnson's statement, suppressed because of a Miranda violation,
included Johnson's confession to the Claussen robbery. (18)

Had the defense called Claussen, James v. Illinois (19) would have
prevented admission of Johnson's suppressed statement to contradict
Claussen's testimony. (20) Prosecutors sought to exclude
Claussen's testimony pursuant to [section] 352 of the California
Evidence Code, (21) which essentially mirrors Rule 403 of the Federal
Rules of Evidence. (22) They argued the court should consider the
suppressed confession when deciding whether the probative value of
Claussen's uncontradicted testimony was substantially outweighed by
its tendency to mislead the jury. Although conceding the only reason not
to allow Johnson to call Claussen was its knowledge of inadmissible
proof contradicting Claussen's anticipated testimony, (23) the
court granted the prosecutor's motion. (24) It reasoned the
confession was not "used" in violation of James when the court
relied on it to prevent the defendant from introducing defense evidence
misleading in its absence, while nonetheless conceding that, had the
defendant elicited Claussen's testimony without objection, James
would preclude admitting the confession. (25)

The court's reasons for distinguishing between using
suppressed evidence to exclude exculpatory evidence the suppressed proof
contradicts, and allowing its admission after the defendant introduced
the exculpatory evidence, belies its claim that the suppressed evidence
is only "used" in the latter circumstance. To begin with, the
court noted the jury did not use the confession to decide Johnson's
guilt because the jury did not hear it. (26) But by virtue of the
prosecution's possession of the suppressed evidence and motion to
exclude, the jury was not permitted to hear Claussen's testimony
either. So the suppressed confession surely determined the evidence the
court allowed the jury to hear, potentially influencing its decision
about Johnson's guilt. Indeed, the Johnson court conceded as much
when it next attempted to show the evidence's undoubted influence
on the jury's deliberation was somehow consistent with James'
holding that the balance between truthseeking at trial and deterrence of
police misconduct does not justify allowing impeachment of defense
witnesses besides defendants. (27) Yet it was no more successful on this
score.

First, the court tried to argue, in contrast to James, truthseeking
supported precluding Claussen's testimony because "it prevents
false or misleading argument from being made to the jury," and
"[t]he only defense chilled ... was a false defense." (28) But
this does not distinguish James at all. The question in James was
whether the jury should consider the defense witness's testimony
that James looked different on the night of the murder than prosecution
witnesses described him, without considering his suppressed admission
that, in fact, he appeared as the prosecution's witnesses
described. (29) The argument for admitting the inculpatory statement the
Supreme Court rejected was exactly the same as that accepted by the
Johnson court: It would prevent the jury from relying on false or
misleading argument while potentially chilling only a false defense.
(30) At most, the James Court held the truthseeking value of testimony
offered by defense witnesses as a class would generally exceed that of
defendants; it hardly claimed truthseeking itself could ever justify
excluding evidence in a particular case that would be admissible
rebuttal evidence had it been legally obtained. Precluding defense
evidence in the name of truthseeking whose rebuttal James disallows
despite its acknowledged contribution to truthseeking in the particular
case is to take a trip down the rabbit hole into the world of Alice in
Wonderland. To prevent James' witness from testifying because his
testimony contradicts James' confession accomplishes exactly what
the James Court rejected when it disallowed the witness's rebuttal
with James' confession. Had the Court allowed the rebuttal, James
undoubtedly would not have called the witness, yielding the same outcome
as in Johnson. The James court did not suggest its holding could be
circumvented by excluding defense evidence whose rebuttal it prohibited.

The same fundamental error undermined the Johnson court's
analysis of deterrence when it held precluding a defense witness's
testimony--unlike allowing its rebuttal as the James Court
prohibited--would not "weaken the exclusionary rule's
deterrent effect." (31) It asserted no decrease in deterrence would
result because precluding defense witnesses whose testimony was
contracted by suppressed evidence "did not increase the number of
witnesses against which the confession could be used, nor did it
significantly increase the occasions on which the confession could be
used." (32) But this claim rests upon the same erroneously crabbed
conception of what it means to "use" the evidence. The
court's own analysis conceded its ruling would prevent any
"false and misleading argument" and ultimately deter any
"false defense," not just those put forth by a
defendant's testimony. (33)

That was exactly the extension of the impeachment exception that
the James Court rejected when it held allowing impeachment of defense
witnesses besides defendants with illegally-obtained evidence would
unjustifiably diminish deterrence of police misconduct. The Johnson
court called it "too speculative and tenuous" to envision a
scenario wherein a law enforcement officer would see a benefit in
obtaining evidence useful to preclude a defense witness from testifying,
but it is clearly no less likely to influence prosecutorial behavior
than the prospect of using the same evidence to rebut or deter the
defense witness's testimony. (34) The incentive to unlawful conduct
created by the Johnson court is no more "speculative and
tenuous" than that rejected as intolerable in James. In fact, since
the likely result if James allowed rebuttal would be to deter the
defense witness from testifying, Johnson not only reduces deterrence in
exactly the manner that James rejected, it approves the same outcome
James rejected.

Finally, the Johnson court even seemed to concede the equivalence
of precluding defense testimony and allowing its rebuttal when it
analogized its facts to that of People v. Payne. (35) In Payne, the
Illinois Supreme Court allowed admission of a suppressed handgun after
defense counsel asked the seizing officer on cross-examination whether
he had searched the defendant's apartment. (36) After the officer
replied that he had indeed searched the premises, counsel asked no
further questions. The court allowed the prosecution to introduce the
weapon seized in the illegal search "to rebut the false impression
created by the cross-examination that nothing was recovered from the
apartment." (37) Calling Payne similar to Johnson, the Johnson
court said it reached the "same result" when it precluded the
witness contradicted by the suppressed evidence, although the Payne
court had admitted the evidence after the witness testified. (38) At the
end of the day, what mattered to the Johnson court--and what led it to
find precedent in Payne rather than James--was not whether defense
evidence was excluded in the first instance, deterred by the prospect of
rebuttal, or actually rebutted. Using the motion to exclude as an
opportunity to evade James' holding, the Johnson Court acted on its
perception that Johnson, like Payne, would "open the door" to
use of the suppressed proof by "affirmatively misrepresent[ing] or
falsely imply[ing]" the facts of the case. (39) Whether the remedy
was allowing the prosecution to use the suppressed proof to prohibit,
deter, or rebut the defense evidence, the point was to forestall the
"defendant's attempt to use Miranda as a sword to force the
jury to consider a false and misleading argument," even if
extrapolated from truthful testimony. (40)

The essence of the court's argument, therefore, was not about
whether the suppressed evidence had been "used" in a
prohibited sense; it clearly had. Instead, it relied on the
view--similar to that expressed by the Payne court--that the prohibition
must yield in appropriate circumstances because "allowing the
defense ... to misrepresent to the jury the actual facts of the case is
... [in]consistent with the proper functioning and continued integrity
of the judicial system." (41) In fact, that view influenced the
Johnson court strongly enough to construe "use" of suppressed
evidence in a fashion clearly inconsistent with James, but consistent
with Payne's allowance of suppressed evidence absent an applicable
exception to the exclusionary rule if the door has been opened. The
appellate court in Johnson quoted approvingly from the trial
judge's analysis as follows:

But ... contrary to the Court's responsibility to the integrity of
the judicial system and of the trial itself, the integrity of the
system has to stand for something, and if the Court were to
consider what's before me and affirmatively conclude that the
uncharged offense which the Court makes a factual finding is
something that the defendant and not Mr. Taylor did based upon the
defendant's own statement and the statement of Ms. Holmes, the
Court would be complicitous in putting inaccurate, confusing and
misleading information before the jury. (42)

Crediting the suppressed evidence rather than the proposed defense
witness's testimony, (43) the court concluded admitting the latter
without rebuttal--James notwithstanding--would undermine the integrity
of the courts and of the trial itself. (44) If James precluded it from
allowing the prosecution to rebut the defense witness, the court would
prevent him from testifying at all.

The Johnson case illustrates how a court's finding that a
defendant justified the use of suppressed evidence by offering contrary
proof can undermine even an application of the exclusionary rule the
Supreme Court has explicitly approved. It therefore provides an
important occasion to consider if courts should find defendants opened
the door to suppressed evidence by taking improper advantage of its
absence at trial, even if no established exception to the exclusionary
rule permitting its use applies. Johnson shows how the effectiveness of
exclusion as a deterrent depends as importantly on case-by-case
determinations about whether defendants opened the door to suppressed
evidence as it does on the scope of rule-based exceptions to the
exclusionary rule. (45)

Besides defining those exceptions, and taking a broad view of
evidence allowed to impeach a testifying defendant, (46) the Supreme
Court has yet to provide guidance on how courts are to approach
questions about opening the door in the context of suppressed proof when
the defendant does not testify. Consequently, the question depends on
what the courts see as the appropriate, analogous evidentiary test,
borrowed from other contexts. Much of the vitality of the exclusionary
rule at trial hangs in the balance; by deciding what constitutes taking
improper advantage of suppression, courts decide the extent of the
benefit derived from obtaining evidence illegally when it is inevitably
used to rebut or deter potential defenses.

II. ACCURATE FACTFINDING AND SUPPRESSED EVIDENCE

Left to evidentiary analogies, courts apply an improperly broad
view of what it takes to open the door to suppressed evidence when they
treat it as if it were excluded for factfinding reasons. Decisions about
whether the door has been opened to evidence excluded to promote
factfinding focus exclusively on the balance between the evidence's
probative value and its capacity for distracting or prejudicing the
jury. Once counsel highlights the absence of the evidence or elicits
proof it contradicts, she increases the probative value of the
suppressed evidence in a way likely, if not certain, to justify
admission. Consequently, the appropriate analogy to deciding whether the
door has been opened is provided by rules excluding evidence for reasons
other than factfinding accuracy. Only if courts model their decisions on
those rules will they assure the constitutional goals of exclusion
consistently take precedence over factfinding accuracy to the extent
that existing doctrine requires. Using that approach, courts should find
defendants open the door to suppressed evidence only when they waive
constitutional protection by seeking to benefit from evidence enabled by
the illegality about which they complain, not when they merely take
advantage of the evidence's absence.

Section A uses a recent case to illustrate the importance of
finding the proper metric to decide whether a defendant takes unfair
advantage of the absence of suppressed evidence and thus opens the door.
Section B shows employing a standard derived from factfinding accuracy
improperly diminishes the deterrent effect of exclusion by routinely
admitting suppressed evidence to contradict exculpatory proof and
inferences. To sustain deterrence, courts must model their decisions on
evidence rules that prohibit the use of contradicting evidence in
pursuit of other goals. Section C shows how prohibiting contradicting
evidence is appropriate even if effective exploitation of its absence
leads jurors to conclude that it does not exist. The unavoidable
possibility that they conclude from the lack of expected evidence that
it was not found confers no improper evidentiary advantage and cannot
justify admission without unduly undermining deterrence. Nonetheless,
Section D shows how allowing the defendant to employ exculpatory
inferences from the absence of suppressed proof still allows for
appropriate limits on his ability to exploit exclusion. When a defendant
seeks to use evidence derived from an illegal investigatory step to make
himself better off than he would be absent the illegality, he waives his
objection by opening a subject that was closed for his benefit.

A. Opening the Door to Suppressed Evidence

The importance of deciding what opens the door to suppressed
evidence is illustrated by the recent case of People v. Fregoso. (47) In
Fregoso, the court suppressed clothing seized from the defendant
pursuant to an illegal arrest. (48) The prosecution tested the clothing
for plant residue consistent with the cornfield that was the site for
the murder with whose commission they charged Fregoso. (49) It also
compared footprints found at the scene with the sneakers seized from
Fregoso. (50) Although the prosecution's experts found no plant
material matching the cornfield on his clothing, they offered to testify
that a footprint was consistent with the defendant's left sneaker.
(51)

Upon learning that the plant residue tests were negative, the
defendant sought an order allowing him to offer evidence of the results
without opening the door to admission of the footprints evidence. (52)
The court denied the motion, finding the defendant could not offer the
residue evidence to show he was not at the scene without opening the
door to the footprint evidence suggesting he was. (53) The defendant
then sought to "waive that portion of the suppression order
relating to the upper clothes, but not the shoes," but "[t]he
court declined defense counsel's offer and reaffirmed its
ruling." (54)

The prosecution called the criminalist who examined the cornfield.
She testified to her observations, taking photographs and collecting
evidence, but did not specifically mention collecting plant material or
discovering and photographing footprints. (55) Before cross-examining
her, defense counsel sought a ruling that he would not open the door to
the sneaker-match evidence by eliciting that the criminalist had taken
plant samples and photographed footprints at the scene. (56) After the
court asked how the defense would use that evidence, counsel replied
"there was no evidence of Fregoso's footprints at the scene of
the crime." (57) The Court denied the motion, noting there would be
no such evidence "[b]ecause it was suppressed. So you opened the
door, you can't do that. If you get in the footprints, it opens the
door up." (58) Subsequently, the court explained "it would be
unfair for the defense to use the clothing to argue Fregoso was not at
the crime scene, when the shoes arguably did link him to the
scene." (59) Later, the court held its ruling would apply equally
to counsel's offering photos of footprints at the scene that did
not match the defendant's suppressed sneakers, because they, like
the exculpatory clothing, would open the door. (60)

Defense counsel recalled the criminalist and elicited that she had
collected plant material from the cornfield, but not that she had
observed or photographed footprints. (61) The court warned counsel that
if she mentioned the absence of "trace evidence found on your
client's clothes or shoes" in summation, he would permit the
prosecution to reopen its case to introduce the suppressed sneaker to
show that it was consistent with footprints found at the scene. (62) He
said he could not "separate the clothing with the trace evidence
... and the shoes," "because the clothes and shoes were both
suppressed." (63) When defense counsel said in summation,
"[d]id you notice that there was no evidence presented by the
prosecution connecting my client to [the] cornfield?," the court
interrupted him and told the jury that it would hear more evidence. (64)
It told counsel that because his claim that no evidence connected the
defendant to the scene "was based on the ruling suppressing your
client's clothing," there was no "excuse for what you did
... except to mislead the jury." (65) The court then allowed the
prosecution to introduce the suppressed sneaker and evidence of its
consistency with the footprint, and the defendant to rebut with
"evidence that no plant material from the crime scene was found on
Fregoso's clothing." (66)

The appellate court avoided ruling on the trial court's
allowing the prosecution to reopen its case to introduce the suppressed
evidence by holding introduction of the sneaker evidence harmless, if
error at all. (67) More importantly, however, it noted it was only
concerned about the actual introduction of the suppressed evidence. (68)
It agreed with the trial court that defense counsel was properly
precluded from arguing no evidence connected the defendant and the
cornfield (69) because "[a]n attorney commits misconduct by
commenting on the adversary's failure to produce evidence the
attorney knows was excluded by the court." (70) Consequently, the
court allowed the prosecution's possession of the suppressed
evidence to benefit it by disallowing comment on the proof's
absence, including how its absence bears on whether the admitted
evidence showed guilt beyond a reasonable doubt. (71) It worried only
that the trial court had not just prohibited the argument, but had
allowed the prosecution to reopen its case actually to introduce the
suppressed evidence. (72)

For analytic purposes, this Article distinguishes the idea that the
door is opened by counsel's taking improper evidentiary advantage
of suppression from the idea that counsel attempting to do so violates
generally applicable ethical rules. Because the courts are not always
entirely clear in their reasoning, and because the two ideas can
reinforce each other since taking "improper" evidentiary
advantage can also reflect unethical practice, distinguishing the
approaches is sometimes difficult. Nonetheless, some courts have held
counsel opened the door to suppressed evidence without necessarily
engaging in unethical practice, suggesting evidence law justifies the
evidence's admission as a matter of "fairness" (73) and
the "integrity of the trial process." (74) In contrast, some
courts have cited generally applicable ethics principles as a primary
determinant of the kind of actions that justifies a court's finding
that counsel has taken improper advantage. (75) The distinction may help
explain why the Fregoso appellate court avoided approving introduction
of the suppressed proof. As a remedy for counsel's unethical
conduct, allowing the prosecution to introduce the suppressed evidence
may not be necessary or appropriate. (76) As a consequence of
counsel's choosing an evidentiary strategy that makes it admissible
rebuttal, however, allowing the prosecution to introduce the suppressed
evidence is unexceptional. The remainder of Part II discusses the
evidentiary dimensions of opening the door to suppressed evidence, while
Part III addresses the ethical aspect.

B. Contradicted Inferences or Proof

The initial evidentiary issue posed by the analyses of the Fregoso
and Johnson courts is whether arguing the lack of evidence or eliciting
contradicted proof--without more--opens the door to suppressed evidence
because it misleads the jury about facts contradicted by the suppressed
evidence. That is the crux of the Johnson court's claim that
because "to misrepresent to the jury the actual facts of the case
is ... [in]consistent with the proper functioning and continued
integrity of the judicial system," (77) even evidence clearly
inadmissible as proof of guilt or impeachment may be used to prevent the
defense from introducing evidence contradicted by the excluded proof.
Since "James said nothing about a defendant's attempt to use
Miranda as a sword to force the jury to consider a false and misleading
argument," the court asserted, normal rules for opening the door to
excluded evidence should apply to allow it. (78) A similar assumption
informed the Fregoso trial court's holding that arguing the lack of
evidence the court had excluded was sufficient to allow its admission
when the alternative would allow a jury to draw an inaccurate inference
(79) and the appellate court's view that, at the very least, the
argument would be improper. (80)

Although suggesting the jury should not be mislead by argument
about the lack of suppressed evidence may seem noncontroversial and
benign, it misses the critical point that what opens the door to
excluded evidence must depend upon the reason we excluded the proof in
the first place. Whether a party has opened the door to otherwise
inadmissible evidence is a question that can arise when applying (at
least) three distinct kinds of evidentiary rules. The first encompasses
rules designed to protect policies and principles internal to the
accuracy of the factfinding process itself. Application of Rules 404 and
403 to prohibit character evidence, but nonetheless allow proof of other
wrongs, crimes, or acts when they are sufficiently probative for a
non-character purpose, provides a good example. We intend the rules to
insulate the jury from evidence that can distract it from accurate
factfinding about matters that the substantive law defines as material.

The second encompasses rules created, at least in part, to prevent
the factfinding process from interfering with other important, though
nonconstitutional, policies and principles. The federal rules'
prohibition of subsequent remedial measures, (81) settlements and
settlement discussions, (82) and withdrawn guilty pleas and plea
negotiations (83) provide good examples. The third encompasses the
constitutional exclusionary rule that is the focus of cases discussed in
this Article. We intend it to prevent the factfinding process from
presenting too great an incentive for authorities to intrude upon the
constitutional policies and principles that exclusion seeks to promote
by according them precedence over normal evidentiary policy. (84)

The easy claim that an attorney's taking advantage of the lack
of evidence she has successfully excluded opens the door to its
admission can make perfect sense only when applied to the first type of
rules--those internal to the factfinding process. Exclusion in that case
ultimately depends upon a balance of the evidence's probative value
and potential to unfairly prejudice the jury in its evaluation of the
facts or to mislead the jury about the issues we ask them to decide. The
initial decision to exclude thus depends on the excluded evidence's
lack of probative value when properly used on a material issue. Comment
on the absence of the excluded evidence brings the issue to which the
excluded proof is relevant to the fore, increasing its probative value.
Just as a defendant may increase its probative value by eliciting
evidence from a prosecution or defense witness to establish a defense
which the excluded evidence rebuts, defense counsel's argument in
summation or assertions in opening may also raise questions that
increase the evidence's probative value. As its probative worth
increases, the judge must decide whether the accuracy of the factfinding
process now demands that the previously excluded evidence be admitted,
or counsel be prevented from taking the steps that would justify its
admission. Since we uncontroversially intend the application of
factfinding rules to further the accuracy of the process, it would
hardly be surprising to learn courts generally find the door has been
opened to excluded evidence. When defense counsel first argues
successfully that prosecution evidence is not probative enough to
justify its potential to detract from factfinding accuracy, but then
belies that claim by highlighting the evidence's absence, he
demonstrates how probative it now is to rebutting the defense case.

Application of Rules 403 and 404(b) provide a classic example. The
Court must first consider whether there is a permissible
(non-action-in-conformity-with character) inference from the challenged
evidence of other crimes, wrongs or acts. (85) Then, it must consider
whether there is sufficient evidence to persuade a reasonable jury by a
preponderance of the evidence that the other crimes, wrongs, or acts
occurred in a fashion that supports the permissible inference. (86)
Finally, it must weigh the likelihood that, despite limiting
instruction, the jury will use the evidence improperly (for the
character inference) against the evidence's probative value when
used only for its permissible (non-character) inference. (87) It can
then admit the evidence only if the likelihood of impermissible use does
not substantially outweigh the likelihood of permissible use. By using
evidence or argument increasingly to contest the issue to which the
evidence relates when used properly, counsel increases the
evidence's probative value in concomitant degrees. (88)

Nonetheless, the analysis of probative value and prejudice hardly
applies when exclusion is justified--even in part--by evidentiary or
constitutional policies external to the factfinding process. The
probative value of excluded evidence increases when it rebuts an issue
defense counsel raised, but if we did not base exclusion entirely on
relative lack of probativity, additional probativity alone should not
render it admissible. Consider, for example, Rule 408's exclusion
of statements made in connection with settlement negotiations. (89) The
rule's exclusion is based partly on the external policy of
encouraging settlements, a policy that does not shift with the
significance of the statements thus excluded. (90) The rule once allowed
such statements to be admitted to show a party spoke inconsistently, but
a subsequent amendment extended the party's immunity to encompass
impeachment use of such statements. (91) The original decision to allow
impeachment use, and the subsequent decision to prohibit it, both
reflect judgments about what is necessary to encourage the free
discussion that may result in settlement. (92) The decisions first to
allow and then to prohibit impeachment use do not ultimately depend upon
the relative probative value of the statement if used as substantive
evidence or impeachment, but rather upon admission's anticipated
effect upon the end that exclusion is designed to promote. (93)

The evidence from settlement negotiations might have been quite
probative. But it interferes with an important policy goal--encouraging
settlements. Since the evidence's admission undermines that goal,
no increase in its probative value alone can determine admission. When
courts decide such evidence is admissible because counsel "opened
the door," they undermine this goal. Impeachment use of statements
made in settlement negotiations is now prohibited because a party's
losing protection against such use by testifying would unduly discourage
frank discussions. That a statement confessing responsibility could
hardly be more probative--especially after the party testifies
inconsistently--does not justify the party's surrendering immunity
from the statement if admission unduly diminishes the external goal.
Rule 408 now conceives that even allowing impeachment use would chill or
deter desired settlement negotiations, requiring we forego whatever
benefit might flow to factfinding. (94) In contrast, Rule 407 allows the
use of subsequent remedial measures to impeach a witness by inconsistent
statement, but not to impeach by contradiction except in limited
circumstances. (95) Allowing impeachment by self-contradiction typically
has minimal impact on a party's taking remedial measures because it
may easily defend itself at trial without calling the very person who
took the measure to testify to something that taking the measure
contradicts. In contrast, allowing a party's remedial measure to
contradict any of that party's witnesses would effectively remove
the rule's immunity. To Rule 407's allowance of inconsistent
statement impeachment and Rule 408's recent disallowance of it, one
might also compare Rule 410, which has always prohibited any impeachment
use of statements made in plea negotiations. (96) There, the rule
contemplates the threat of impeachment to have maximal impact on a
defendant's willingness to discuss a plea because allowing the
impeachment compromises his ability to testify on his own behalf. (97)

Other limits on exclusionary rules promoting values besides
factfinding accuracy similarly reflect the priority of the contextual
effect of admission on the desired goal. Rule 408, for instance, allows
other uses, such as proving a witness's bias or prejudice, negating
a contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution. (98) Again, probative value alone does not
explain the permission to use settlement statements for those purposes.
We must look to the effect on the external goal. (99) Using the
statements to explain the reason for delay or the means by which a party
obstructed a criminal investigation is thought not to adversely affect a
party's willingness to engage in bona fide settlement talks. (100)
Eliminating the protection should create no disincentive to engage in
behavior the rule aims to encourage. By the same token, when settlement
or talks with one party affect the worth of his testimony against
another, the desire to encourage bona fide settlements does not
encompass ignoring the possibility that a party may use dealings with
one opposing party to "purchase" favorable testimony against
another. (101) Again, the loss of protection by allowing a settlement to
show bias or prejudice of a witness discourages no settlements that the
rule seeks to promote.

Nonetheless, it seems especially tempting for courts to conceive
that probative value determines when they should remove protection
against evidence suppressed by the constitutional exclusionary rule. The
Supreme Court describes the scope of the exclusionary rule as the
product of a balance between truthseeking and deterrence. (102) As
counsel contests issues that accentuate the probative value of the
suppressed evidence and increase the cost of its exclusion to
factfinding accuracy, courts apparently expect the balance to tip in
favor of admission. But that is simply not so, at least not without
further analysis of the effect of admission on deterrence. Without
further analysis, courts should see the balance can remain the same or
even tip further in favor of keeping the evidence out. Requiring counsel
to forgo making the argument or introducing the evidence to which the
illegally-obtained proof would be an especially probative rebuttal can
only increase the incentive to obtain it.

It is one thing to say general rules such as allowing suppressed
evidence to impeach defendants but not defense witnesses can be shaped
by a balance between truthseeking and deterrence; it is entirely another
thing to say the opening the door policy in individual cases should use
the same balance to assure admission of suppressed evidence when it is
most probative. While balancing at the "wholesale" level can
properly inform the scope of the exclusionary mandate by suggesting a
rule that promises greater deterrence at lesser cost to the truth,
further balancing at the "retail" level to admit particularly
probative evidence undermines the justification for the rule originally
selected. Once the prosecution can foresee benefitting from obtaining
evidence illegally when the proof is most needed in individual cases,
the incentive to obtain it rises along with its probative value. As the
comparison with federal rules excluding evidence for reasons external to
factfinding shows, only contextual circumstances besides probativity can
elucidate the effect that admission of excluded evidence will have on
the external goal. When the rule itself does not decide whether a
particular use of the absence of excluded evidence justifies its
admission, the court first needs to consider the circumstances'
effects on the goal--here, deterrence--before allowing increased
probativity to justify its admission. When the purpose of exclusion is
the pursuit of a policy external to factfinding, opening the door is
more complex than determining that the defendant has chosen to contest a
point that makes excluded evidence especially probative. It is not
enough to say the defendant might have refrained from disputing the
point, since the cost attached to doing so itself can undermine the
external goal. By using a standard for opening the door that promises
the prosecution use of suppressed evidence to deter or rebut defense
evidence when necessary, courts eliminate whatever deterrence was
achieved from excluding the evidence in the first place.

The problem of avoiding this complexity is manifest in a recent
article distinguishing between the doctrines of specific contradiction
impeachment and curative admissibility, both of which courts often refer
to as species of the genus "opening the door" to otherwise
inadmissible evidence. (103) According to Imwinkelried and Gilligan,
specific contradiction impeachment reflects a party's right to
respond to an opponent's evidence with his own rebuttal proof that
can show the opponent's evidence is false or misleading. (104) It
is presumptively admissible, subject only to factors that undermine its
probativity. (105) Its exclusion will thus be rare, likely limited to
situations where its admission confuses the issues or wastes time. (106)
In contrast, curative admissibility reflects a party's far more
discretionary right to introduce evidence countering an opponent's
introduction of evidence inadmissible under evidence law, a doctrine
courts sometimes call "fighting fire with fire." (107) The
ability to do so should rest on many factors inapplicable to specific
contradiction, such as whether the initial violation was intentional and
thus may potentially need to be deterred to prevent recurrence, and
whether some combination of less drastic steps, such as requiring
objection to prevent admission of the inadmissible evidence in the first
place, striking the evidence after its admission, and giving a curative
instruction, can undo the damage without allowing introduction of
additional, inadmissible evidence. (108) Notably, the authors count the
Supreme Court's allowance of suppressed evidence to contradict a
defendant's testimony as a primary example of specific
contradiction. (109) They argue it shows "the probative worth of
truly contradictory evidence is so great that it can lift the bar of
even a constitutional exclusionary rule," (110) and the "right
to specifically contradict the opponent's testimony is an essential
entitlement" whose disrespect imperils the functioning and
integrity of the adversary process. (111)

Contrary to their claim, the probative value of suppressed
evidence, however enhanced by its contradiction of defense evidence or
important to factfinding accuracy, does not necessarily override the
deterrence promoted by exclusion. The same evidence the Supreme Court
held admissible to specifically contradict a defendant's testimony,
it has held inadmissible if offered to specifically contradict any other
witness besides the defendant because the resulting diminution in the
deterrent effect of exclusion would be intolerable. (112) Indeed, the
apparent assumption that the integrity of the trial process entitled the
prosecution in Johnson to exclude, if it could not rebut, Johnson's
misidentification evidence, caused the Court to prohibit the defense
evidence erroneously. (113) It failed to consider that ruling's
impact on the deterrence of constitutional violations sought by the
Supreme Court's exclusion of the evidence in the first instance.
Since that deterrence depends upon the courts not allowing possession of
the illegally-obtained evidence to require the defendant to refrain from
taking advantage of its absence to avoid suffering its admission, the
error of the Johnson court is manifest. It eliminates the deterrence
James required by creating the very incentive to obtain evidence
illegally that James eliminated. However probative the suppressed
evidence may be in a particular case, its importance is inferior to the
diminished incentive effect the Court held intolerable if all defense
evidence invited rebuttal with suppressed evidence.

Since specific contradiction of much defense evidence alone does
not justify admitting suppressed proof, it easily follows that merely
pointing out the absence of suppressed evidence when urging the jury to
conclude that the prosecution's evidence does not amount to proof
of guilt beyond a reasonable doubt should not open the door. In
circumstances such as those in Fregoso, for example, counsel should be
able to exploit the absence of physical evidence placing Fregoso at the
scene by factoring it into whether the government's evidence proved
Fregoso's involvement beyond a reasonable doubt. If the purpose of
suppression is to deny the government the benefit of its
illegally-obtained evidence when making its case for guilt, then we
should hardly preclude counsel from urging the jury to do what the rule
says they should do, which is to consider the strength of the
prosecution's case without the illegally-obtained evidence.
Counsel's argument in summation alone--"Did you notice that
there was no evidence presented by the prosecution connecting my client
to [the] cornfield?"--should be perfectly proper. (114) The impact
of the evidence's absence on the jury's decision defines the
deterrent effect of exclusion at trial, and since other goals require
the jury to decide the case without the benefit of the proof, it must be
appropriate for counsel to point out its absence. The alternative--to
require the defendant to refrain from pointing out a weakness in the
prosecution's case for guilt left by the absence of
illegally-obtained evidence, or to hold the door opened to the evidence
in rebuttal--is to eliminate the deterrence of unlawful conduct that the
exclusionary rule seeks unless the evidence is necessary to survive a
motion for judgment of acquittal.

The unacceptability of the alternative is illustrated by Rogers v.
State, (115) in which the trial court held defense counsel's
summation opened the door to the defendant's confession excluded
because of a Miranda violation. (116) Defense counsel argued that
"hard evidence" introduced at trial tended to show that
Rogers' testifying codefendants rather than Rogers murdered the
victim, repeatedly lied to police about it, and then falsely implicated
Rogers at trial to minimize their liability. (117) He specifically
highlighted their testimony that the murder weapon was stolen from one
of their neighbors, wrapped after the murder in one of their shirts, and
hidden in a place suggested by one of them, after which two others
"used the dead man's money to buy drugs and rent a room."
(118) Responding to the comparative lack of "hard evidence"
that Rogers--rather than his codefendants who admitted much of their
involvement--was the shooter, the prosecutor moved to reopen his case to
introduce the defendant's taped confession in which he had admitted
to shooting the victim. (119) Although recognizing it was going
"out on a limb," the trial court allowed the prosecution to
introduce the confession. (120)

The appellate court reversed, noting the lack of precedent for
admitting illegally-obtained evidence to rebut statements made by an
attorney in closing argument, however misleading the prosecution claims
them to be. (121) More importantly for present purposes, it wrote:

Even assuming that use of an impermissibly obtained confession is
justified to rebut improper argument by counsel, the facts of this
case do not justify use of the confession because the argument of
counsel here was not improper. It was the State's burden to prove
beyond a reasonable doubt that Appellant was guilty. It was not
Appellant's burden to prove his innocence. A reasonable doubt might
occur when evidence is lacking or when it is discredited.
Therefore, a defense lawyer's duty during closing is to challenge
the sufficiency and credibility of the State's proof. Counsel is
free to argue these issues using all reasonable inferences that
might be drawn from the evidence. That is all that was done here.
We conclude, therefore, that the court erred in admitting the
confession. (122)

Thus, despite the prosecutor's claim that "admission of
the confession was necessary to prevent [defense counsel] from
misleading the jury by suppressing the truth" and from making an
"argument that he knew to be false in fact," the court held
using the absence of evidence to challenge the state's case was
perfectly appropriate. (123) Indeed, such argument and its potential for
"suppressing the truth" was a contemplated consequence of
exclusion:

Application of the exclusionary rule, for example, usually results
in the suppression of evidence, either physical or testimonial,
that might disrupt the truth-seeking objective of a jury trial. On
balance, however, the courts have reasoned that the suppression of
truth is justified when important constitutional rights are to be
vindicated. (124)

The Fregoso trial and appeals courts' suggestion that counsel
either acted improperly or opened the door to the suppressed proof
merely by pointing out the absence of physical evidence connecting
Fregoso to the murder scene, therefore, cannot be any more right than
the court in Johnson.

C. The Inference That Suppressed Evidence Does Not Exist

The overly broad claim that exploiting the absence of suppressed
evidence alone opens the door masks a more subtle analysis of using
suppression as a shield but not a sword that may be influencing the
courts. Defense counsel in Fregoso did not just urge the jury to
consider the absence of suppressed evidence. He asked it do so after
eliciting that the criminalist had collected plant material that
prosecutors potentially could match to defendant's suppressed
clothing, effectively suggesting, in the absence of matching evidence,
that none was found. (125) The prosecution initially had the criminalist
testify generally to taking photographs and collecting evidence at the
scene, but did not specifically elicit that she had collected plant
material and photographed footprints. (126) Although the trial court
warned defense counsel against eliciting those facts, the prosecution
recalled the criminalist and elicited the plant material evidence, but
not the footprints. Thus when counsel argued the prosecution had
produced no physical evidence, the jury likely understood it as a claim
that no connection to the cornfield had been found from the plant
material. (127) While that claim was true enough, the similarity between
the sneakers and the footprints did constitute physical evidence that
tended to place the defendant at the scene. The court held it was
"unfair for the defense to use the clothing to argue Fregoso was
not at the crime scene, when the shoes arguably did link him to the
scene." (128) The court might have reasoned that the jury,
evaluating evidence that investigators collected plant material but
produced no matching evidence at trial, would interpret counsel's
reference to the lack of physical evidence to indicate that
investigators failed to find any trace evidence for which they would
likely search, including footprints. (129) In any event, it is
sufficient to focus on the court's view that surely eliciting the
footprints--one of which matched the suppressed sneakers--opened the
door to the sneakers. Otherwise, admitting the footprints would surely
mislead the jury into concluding that no match for them was found.

On this view, the Fregoso court reacted to defense counsel's
exploiting the evidence's suppression to introduce the footprints
and thereby suggest there was affirmative proof the defendant had no
matching sneakers, rather than merely argue the significance of their
not being produced at trial. If so, counsel took improper advantage only
at the point at which he took steps calculated to suggest police found
no physical evidence connecting the defendant to the scene rather than
merely to argue that the prosecution's failure to produce it left a
reasonable doubt.

People v. Payne (130) shows a court using a similar distinction to
allow counsel to argue the absence of suppressed evidence at trial, but
not to suggest that the evidence was not found. In Payne, the court held
the defendant opened the door to admission of a suppressed gun found in
an apartment when he elicited evidence that police had searched the
apartment. (131) Without waiting for summation, the court admitted the
gun seized in the illegal search to rebut the "false implication
that nothing connected with the robbery was recovered during the
search." (132) The court believed proof of the search coupled with
the lack of evidence of its fruits would potentially mislead the jury
into finding the search had come up empty. (133) Moreover, waiting for
summation to see how counsel would use evidence of the search apparently
was not necessary because, considering its fruits were suppressed, the
fact it occurred was not relevant except to suggest nothing was
recovered. (134)

The Rogers court suggested a similar distinction. While holding
defense counsel's argument about the lack of "hard
evidence" showing that his client rather than a codefendant was the
shooter did not open the door to his client's confession, the court
nonetheless wrote that defense counsel may open the door to suppressed
evidence if his "questions falsely suggest a lack of evidence that
the lawyer knows exists, but which was subject to pretrial
suppression." (135) The analysis rested on the primary distinction
between exploiting suppression properly to "challenge the
sufficiency ... of the State's proof ... using all reasonable
inferences that might be drawn from the evidence" (136) and
improperly to establish there was no such evidence as was known to
exist, but which had been suppressed. (137) It also said arguments and
questions designed to suggest suppressed evidence had not been found
were improper, though the remedy for counsel's merely suggesting
that and eliciting testimony to that effect would differ. (138) The
opinion noted courts can deal with improper argument and questions by
sustaining objections and, ultimately, reminding counsel of ethics
rules. (139) But "[w]hen a lawyer questions a witness, the answer
is evidence," (140) whose impact on the jury might be counteracted
only by admitting the suppressed proof.

However appealing and, perhaps, necessary it may be to distinguish
between asserting suppressed evidence does not exist and merely arguing
the significance of its absence at trial, there is no basis for finding
the former gives defendants an unfair evidentiary advantage by allowing
the jury to decide based on a false fact. Although the distinction
between the "absence of evidence" and "evidence of
absence" is critical to good science, (141) it is largely
irrelevant to legal factfinding when the prosecution bears the burden of
proof and the defendant, who has no obligation to produce evidence,
seeks to capitalize on the prosecution's failure to produce it. The
structure of a criminal trial places the burden of producing evidence on
the prosecution, and we ask the jury to make a decision based on the
presence or absence of evidence actually produced at trial. (142) From
their perspective, there is little difference between deciding a case
based on the absence of evidence produced at trial and the absence of
evidence found outside the courtroom in an illegal search. The
significance of the missing evidence depends far more upon the
jury's expectation of its production if the proposition the
prosecution seeks to prove is true. (143) In turn, that expectation
depends upon numerous factors that dwarf whether the jury concluded
authorities did not find it, or simply decided the case without ever
considering the reason for its absence. Of critical importance is what
all the other evidence in the case along with common experience suggests
about the probability the evidence would exist if the defendant were
guilty and that the prosecution can find and produce it if it did exist.

Explaining why the prosecution did not produce the proof defeats
the purpose of exclusion and so evidence of the suppression obviously
cannot be admitted to explain its absence. Without an explanation for
its non-production, we expect the jury to assess the significance of the
evidence's absence for the strength of the prosecution's case
without speculating about the existence of a legal impediment to its
production that changes its probative worth. So we ask them to consider
the evidence before them as a closed universe, which effectively asks
them to decide as if all the evidence available to them is all they
discovered during the investigation, or, at least, all upon which they
can legitimately rely. Assessing the strength of the evidence that is
lacking, they may consider that any evidence not before them does not
exist outside the courtroom (why else would the prosecution not offer
it?) or, perhaps, even that the prosecution failed to pursue it. Both of
those explanations are, of course, untrue if one credits the prosecution
witnesses testifying to the illegal search and its fruits, but they do
not exact a factfinding cost that is unfair from the perspective of what
we ask a jury to do.

We ask a jury to decide whether reasonable doubt remains by
assessing the significance of missing evidence for the strength of the
prosecution's case, a process that may require them to consider
possible reasons for its absence. If they do not speculate about a
reason for its non-production that is unrelated to its probative worth
within the closed universe of evidence they have heard, they are doing
exactly what we ask them to do. Assuming some legal impediment such as
an illegal search exists, and then considering that impediment to
diminish the significance of the evidence's absence within the
context of all the proof, is exactly what we do not want the jury to do.
So even if the jury should consider the absence of physical evidence a
consequence of a search that came up empty or an inadequate
investigation, they are still properly assessing its significance for
the strength of the prosecution's case. What really matters most is
that they do not speculate about its absence for reasons besides those
relevant to their job--to reach a conclusion about the strength of the
closed universe of proof before them. (144) From the perspective of
probativity, that the evidence "merely" does not exist at
trial for the jury to consider is not significantly different from the
evidence's not having been discovered outside the courtroom. Either
way, the prosecution's case needs to be judged without it.

Moreover, as the discussion of opening the door to admission of
evidence excluded for factfinding accuracy shows, counsel hardly needs
to suggest that absent evidence does not exist to make it particularly
probative. The suggestion the prosecution's case fails to eliminate
a reasonable doubt that remains because of the absence of the evidence
is more than sufficient. (145) So avoidance of an unfair evidentiary
advantage does not justify this attempt to distinguish between the use
of the exclusionary rule as a mere shield and as a sword. Far more
important to the significance of the excluded evidence is how its
relationship to other proof affects the jury's expectation that the
evidence would exist and the prosecution can produce it if the defendant
were guilty, despite whether counsel is trying to establish it does not
exist at all or "merely" that its absence at trial matters. To
the defendant, who has no burden, it is far more important to establish
the importance of the missing evidence than to establish why it is
missing, as long as the jury does not speculate about a reason for its
absence that is unrelated to the strength of the prosecution's
case. (146)

Moreover, the two forms of persuasion ultimately cannot help but
overlap. When counsel urges the particular significance of the
evidence's absence in the context of the proof, she heightens the
jury's expectation that they would produce the evidence if the
defendant were guilty. Doing so thus makes it more likely the jury will
consider its non-production a sign it does not exist or that the
prosecution failed to pursue it. Consider Payne. The court believed that
proving the search occurred unfairly allowed the defense to
"affirmatively misrepresent or falsely imply that the police found
no physical evidence connected with the robbery during their
search" rather than merely to "argue the lack of corroboration
of the identifications or point out that the State's case depended
almost entirely upon the reliability of the identification
testimony." (147) But it immediately and (presumably) unwittingly
revealed how slippery that distinction could be when it noted
"[t]he problem in this case arose ... from cross-examination and
potential argument by the defense which falsely implied the absence of
physical evidence connecting defendants with the crimes." (148) The
ambiguity in the sentence between the absence of physical evidence
introduced at trial or discovered during the search is telling. To argue
the lack of corroboration, defense counsel obviously had to argue (at a
minimum) the absence of physical evidence produced at trial connecting
Payne to the crime. But to argue its significance, he also had to ask
the jury to consider that it should exist and be produced if they
adequately proved the identification.

That the police searched the apartment where they arrested the
defendant the same day as the robbery surely increased the likelihood
that corroborating evidence would be produced if it existed, and with it
the likelihood the jury would conclude from its non-production that it
was not found. Nevertheless, evidence the defendant carried a weapon,
made off with proceeds of the robbery, and was arrested in the apartment
shortly after the robbery alone, without mention of the search at all,
also increased the likelihood that corroborating evidence should be
found and produced. Those facts magnify the significance of
corroborating evidence's absence while unavoidably increasing the
likelihood that the jury would falsely conclude they produced none
because none was found. (149) Yet the false explanation for the gap in
the proof does not meaningfully increase its significance, conferring no
unfair evidentiary advantage.

While factfinding does not suffer when counsel's highlighting
the significance of suppressed evidence unavoidably suggests it was not
found, deterrence clearly does when courts use that circumstance to
justify admitting illegally obtained evidence. Counsel, anxious to avoid
opening the door, is deterred from establishing the significance of
absent evidence because, by doing so, he also suggests it does not
exist. (150) Just as evidence of a search without its fruits (as in
Payne) suggested nothing was found, so does any proof or argument
increasing the significance of potential evidence whose absence is
unexplained suggest it does not exist. For example, if there were
testimony the victim saw the perpetrator enter the apartment carrying
weapons shortly before his arrest, the failure to produce weapons to
corroborate the victim's identification of Payne as the perpetrator
would be significant in a way it would not be without the testimony. If
the defendant elicited the testimony, would it, like the search, open
the door to the suppressed evidence because the testimony also
"falsely impl[ied] that the police found no [weapons]?" (151)
That is essentially what Fregoso held when it decided evidence of the
footprints justified introduction of the suppressed sneakers. (152) If
the prosecution elicited the weapons testimony, would the defendant
still open the door by arguing reasonable doubt because the prosecution
did not produce the weapons that its evidence suggests it can produce if
the identification were accurate? Fregoso supports that result too. If
counsel's introducing the evidence or making the argument in these
scenarios opens the door, what is left of the Rogers court's
holding that counsel can urge the jury to consider the sufficiency of
the State's proof "using all reasonable inferences that might
be drawn from the evidence"? (153)

The overlap between counsel's making effective use of the
suppressed evidence's absence at trial and effectively suggesting
it was not found means counsel legitimately doing the former will always
run the risk of opening the door to the suppressed proof. This risk
increases proportionately as defense counsel succeeds in highlighting
the significance of the absent evidence in the context of the case.
Meanwhile, the consequences of opening the door are dramatic. Admission
of the suppressed evidence not only corrects the impression that
suppressed evidence was not found; it establishes defense counsel as, at
best, a thoroughly unreliable analyst of the strength of the
prosecution's case or, at worst, a manipulator guilty of having
deliberately misled the jury. The combination of uncertainty about a
court's finding that counsel has opened the door and its Draconian
consequence sends a powerful message.

To risk-averse defense counsel, avoiding opening the door is
critical because doing so is an avoidable blunder fatal to the
defendant's chances of acquittal. If factfinding were the only
issue, that result would be unproblematic, but deterrence is the
critical metric, and counsel's compulsion to take all steps
necessary to prevent opening the door greatly diminishes it. To avoid
any possibility of opening the door, counsel would have to allow the
prosecution to determine the consequence of suppression by selectively
introducing evidence to minimize the significance of the missing proof
by, for example, omitting testimony that would lead the jury to expect
suppressed corroborating evidence. Introducing evidence or making an
argument that specifically called the jury's attention to facts
leading them to expect the suppressed evidence would inevitably risk
opening the door by suggesting that the absent evidence does not exist.
The result would be similar to when a defendant waives his immunity
against the use of plea discussions by allowing the prosecution to use
his statements "to rebut any evidence or arguments offered by or on
behalf of [the defendant]." (154) As a court interpreting such a
waiver (155) observed, the provisions require counsel who wishes to
avoid opening the door only to "argue reasonable doubt"
because the government's witnesses "should not be
believed," while prohibiting him from asserting "any
affirmative theory of factual innocence" such as whether the
charged crime occurred or whether the defendant committed it. (156)

Once counsel attempts to establish the proof is consistent with the
defendant's factual innocence, as, for example, when the absence of
expected corroborating evidence challenges the victim's
identification of Payne or Fregoso's presence at the crime scene,
he crosses the line between capitalizing on suppression to shield his
client from the illegally-obtained evidence and using the
evidence's absence to establish a contradictory theory of events
based on a false fact, opening the door to the suppressed proof.
Allowing the prosecution to use its illegally-obtained proof to
eliminate the defendant's ability to advance a theory of factual
innocence (157) thus confers a substantial benefit. At the very least,
it confers a benefit that the Court's holding merely that
suppressed evidence is inadmissible on the prosecution's
case-in-chief does not contemplate. It is a long way from not
considering the evidence when deciding the prosecution's
affirmative case is sufficient to survive a motion for judgment of
acquittal to allowing the evidence to prevent the defendant from
developing any theory of factual innocence rebutted by the
illegally-obtained evidence. In that distance, there is much room for
the prosecution to realize that obtaining evidence illegally, while
forgoing the opportunity to use it to survive a motion for judgment of
acquittal, nonetheless makes the difference between a merely possible
and certain conviction. That very possibility moved the James (158)
Court to prohibit the general use of suppressed evidence for rebuttal,
reasoning its contribution to factfinding accuracy could not justify the
diminished deterrence resulting from its admission. (159)

Moreover, to the extent there is precedent, there is every reason
for defense counsel to expect that highlighting the significance of the
missing proof by establishing that its absence allows for an innocent
factual scenario that the prosecution has not disproved would not
automatically open the door. Just as the suggestion that nothing was
found when Payne was arrested cast doubt on the victim's
identification, the evidence that the defendant in James had changed his
appearance before the crime cast doubt on his. But James' evidence
did not open the door because using his confession to deter or rebut any
exculpatory evidence besides his own testimony attached too extensive a
reward for obtaining evidence illegally. We can hardly fault counsel for
thinking any attempt to establish a theory of factual innocence, with
evidence elicited from witnesses besides the defendant and ordinarily
appropriate argument, would not open the door to the suppressed
evidence. After all, if defense counsel can call a witness to testify
Payne arrived at the apartment empty-handed without risking rebuttal,
why--from the perspective of a jury's finding false facts--should
eliciting there was a search open the door? If counsel can call a
witness to testify that Fregoso was not at the crime scene without
risking rebuttal, why should eliciting what investigators collected at
the scene--to educate jurors about the kind of proof the prosecution
might have produced to place him at the scene, but did not--open the
door? So less risk-averse counsel may try it, but if the cases are any
guide, they will do so with disastrous consequences certain to dissuade
them, and others, from repeating the mistake.

D. When Defendants Waive Protection Against Suppressed Proof

Except for using suppressed evidence to impeach a testifying
defendant, the deterrent purpose of the exclusionary rule requires
defense counsel be allowed to elicit evidence and make arguments
contradicted by suppressed evidence without fear of opening the door.
(160) This permission must encompass the ability to exploit all factual
inferences available because of the absence of the suppressed proof,
even though a consequence may be to allow the jury to conclude the
suppressed evidence must not exist. That does not mean, however, there
is no limit on the defendant's legitimate exploitation of the
exclusion of illegally-obtained evidence, just that it cannot be
justified by focusing on the probative value of suppressed evidence
while turning a blind eye to deterrence when exclusion seems to pinch
the most. This Section argues courts fairly require defendants to waive
their protection against suppressed evidence when they seek to use
evidence enabled by the violation about which they complain. That
encompasses circumstances where they seek to introduce proof of an
unlawful search or interrogation (including any resulting evidence) or
when they ask the jury to consider why the suppressed evidence is absent
at trial--for example, because the prosecution failed to pursue or to
find it. In each of these cases, the defendant chooses to open a
subject--the existence of the unlawful investigatory step, its product
or the reason for the evidence's absence--closed for his benefit,
and attempts to use suppression to make himself better off than he would
have been absent the illegality. (161)

The circumstances under which defendants would waive their
protection are far narrower than all the occasions upon which defense
arguments or evidence will mislead in the absence of suppressed
evidence, preserving deterrence even when counsel's emphasis on the
importance of missing evidence might lead the jury to conclude that it
does not exist. Simultaneously, however, it prevents counsel from
exploiting evidence to whose acquisition he objects without waiving that
objection. (162) It also prevents him from proffering an explanation for
the evidence's absence enabled only by the need to prevent the
prosecution from offering its explanation, with the effect of
undermining suppression's goal. (163) The circumstances are
narrower because they focus not on factfinding accuracy, but rather on
the non-factfinding reasons for exclusion, and hold the door is opened
when those reasons do not require continuing the defendant's
immunity. (164)

The exclusionary rule creates an immunity from evidence obtained by
violating defendants' rights to be free of unreasonable searches
and seizures and pressure to make involuntary or uncounseled statements.
(165) Defendants may, of course, waive their rights to have their case
adjudicated without illegally-obtained evidence by choosing not to
challenge investigators' actions. (166) By introducing evidence
obtained illegally, the defendants should also waive their rights to
exclude other evidence obtained in the same unlawful search, seizure, or
interrogation as that which yielded the evidence they introduce. It does
not advance the goal of protecting affected defendants from the
consequences of those constitutional violations if they are not so much
objecting to the violation of their rights as trying to take strategic
advantage of it with evidence they would not otherwise have. While they
undoubtedly would prefer to take advantage of suppression to use any
exculpatory proof gathered illegally while excluding the inculpatory
proof, there is no justification for allowing them to do so.

First, the underlying constitutional protections themselves address
the authorities' actions, not the affected party's right to
avoid only incriminating evidence gathered thereby. (167) A defendant
insisting in good faith on protection from the consequences of
authorities' illegality is hard pressed to claim that he is
entitled to exploit those consequences selectively. Second, although one
might imagine allowing defendants to make selective use of suppressed
evidence imposes a penalty deterring violations even further, there is
no reason to believe doing so is necessary. The police deciding whether
to take the challenged investigatory measure undoubtedly anticipate that
it will produce incriminating evidence. It is unlikely the decision to
do so will be deterred by the prospect that, besides losing the
anticipated inculpatory evidence, the prosecution may have to suffer
some exculpatory evidence obtained during the same search, seizure or
interrogation that can be rebutted only by inculpatory, but suppressed,
evidence. The requisite deterrence is adequately achieved by making the
defendant no worse off for the government's having obtained
evidence illegally that is inadmissible on its case-in-chief or, under
the circumstances, as rebuttal. It does not require selective use of the
tainted evidence that, by making the defendant better off than he would
have been without the government illegality, amounts to a windfall.
(168)

Recasting opening the door as a question of waiving one's
protection by seeking advantage enabled by the government's
illegality offers a different perspective on the cases. First, waiving
protection against suppressed evidence depends upon whether the evidence
the defendant offers was obtained by the same illegal means to which the
defendant objects, not whether it is contradicted by the suppressed
evidence or creates an inference allowing the jury to conclude that it
does not exist. Fregoso provides an example. Before the court allowed
the prosecution to use Fregoso's suppressed clothing to show an
inculpatory footprint in response to counsel's pointing out the
absence of physical evidence placing Fregoso at the scene, it responded
to his attempt partially to withdraw his suppression motion. Counsel
sought to use the suppressed clothing to show it was free of plant
material while nonetheless prohibiting the prosecution from using the
sneakers to show the matching footprint. (169) Counsel later tried to
use the sneakers to show they did not match some footprints, while
preventing the prosecution from using the sneakers to show the match
with other footprints. (170) Neither of these uses would be allowed
under a waiver rule that requires the defendant to object to a search or
suffer all evidence it produced. At one point, the court found its way
to a similar conclusion when it finally explained the defendant could
not introduce the clothing without the sneakers because they were
"both suppressed," (171) though the linchpin of waiver is not
that they were both suppressed, but that they were discovered during the
same unlawful search.

If they had seized the inculpatory sneakers in one unlawful search
and the other clothing in another, there is no reason the
defendant's choice to introduce the exculpatory clothing should
prevent him from challenging the separate, unlawful search revealing the
sneakers. Using probativity as a guide, however, the court struggled to
explain why the defendant could not selectively introduce the clothing
to establish the lack of plant material evidence, while nonetheless
excluding the inculpatory footprints, finally suggesting that
introducing the exculpatory evidence without the rebuttal was simply
misleading. (172) But that rationale is far too broad; it cannot explain
the doctrine that clearly permits the defendant to do exactly that if
they obtained the exculpatory clothing lawfully while they obtained the
inculpatory sneakers illegally. (173) The waiver rule, however, asks
whether the defendant chooses to use evidence enabled by the unlawful
search of which he complains. The Fregoso court decided that issue
correctly. Since the clothing and sneakers were part of the same
unlawful search, the defendant could not both complain of the violation
and capitalize on it. But the proper rationale is not rooted in the
probative value of the suppressed evidence considered against the
defense the defendant advanced, or else we would admit it despite
whether the defendant used evidence from the same, or a different,
search to make his defense. (174) Similarly, Payne was subjected to a
lawful search upon arrest that yielded nothing right before the illegal
apartment search that produced the gun. (175) Had he offered evidence
that the search of his person came up empty, he would not have waived
his right to suppress the gun seized in the illegal apartment search.

Payne also presents the scenario of indirect proof of a
search's result that merits similar analysis. Defense counsel
refrained from directly eliciting evidence of what was seized, eliciting
only that police had conducted a search. When linked to the
prosecution's failure to produce any seized evidence, proof of the
search created the inference that nothing was found. Indeed, since
counsel did not seek to elicit anything they had seized, proof that
authorities conducted a search had no relevance besides indirectly
proving it came up empty. Consequently, the evidence amounted to proof
of the search's results, justifying waiver as if counsel had
directly elicited evidence that nothing was found in the search or
selectively introduced some seized items. Moreover, the prohibition on
mentioning the search works both ways. The prosecution's eliciting
the search but not its outcome--daring the defendant to ask about what
was found--is improper. (176) In this scenario, the relevance of the
search is dependent upon the jury's inferring police found
something incriminating that the prosecution cannot elicit and of which
the defendant would rather have the jury be unaware. Courts need to
prevent this and other indirect efforts to prove something incriminating
was found, just as they need to prevent indirect efforts by defendants
to prove that nothing incriminating was found. The way to do that is to
prevent both sides from eliciting proof that the illegal investigatory
step occurred at all.

The waiver rule also explains why the court's holding in Payne
preventing the defendant from "affirmatively misrepresent[ing] or
falsely imply[ing] that the police found no physical evidence connected
with the robbery during their search" (177) should provide no
support for courts, such as that in Johnson, finding counsel opens the
door whenever she introduces evidence or makes an argument contradicted
by suppressed evidence. The Payne court was careful to note the
defendant could use the absence of physical evidence to "argue the
lack of corroboration of the identifications" and "allowing
the defense or prosecution to misrepresent to the jury the actual facts
of the case is neither consistent with the proper functioning and
continued integrity of the judicial system nor with the policies of the
exclusionary rules." (178) Considering the policies underlying the
exclusionary rule, the court's reference to the "actual
facts" misrepresented was to counsel's establishing that no
evidence was found in the search rather than to his arguing inferences
from the absence of the evidence for the strength of the
prosecution's case. If the defendant wants to prove investigators
found no incriminating items or to ask the jury so to conclude, he is
free to do so, understanding he has waived his immunity to the
prosecution's proof of what police actually discovered during the
illegal search. Allowing him to do so without waiving his immunity is
not necessary to achieve the purpose of the exclusionary rule, while
arguing all the inferences from the absence of the evidence is. The
"actual facts of the case" about whose misrepresentation Payne
was concerned, (179) therefore, are those surrounding the illegal
investigatory measure whose assertion is unnecessary to accomplish
exclusion's purpose, not to the "actual facts" concerning
the crime.

The waiver rule preserves the requisite deterrence that flows from
the evidence's suppression in this circumstance as well.
Prohibiting proof of the unlawful investigation amounts to prohibiting
any explanation for why suppressed evidence is absent that implicates
the existence of the investigation. We prohibit the prosecution's
explanation for the obvious reason that allowing it would completely
undermine deterrence. Meanwhile, meaningful deterrence depends upon the
defendant's ability to expose weaknesses in the prosecution's
case by exploiting the absence of suppressed evidence, including arguing
why they should produce it to eliminate reasonable doubt. Allowing the
defense to do so requires a test for opening the door that will not
deter them from introducing evidence or making arguments suggesting
innocent factual scenarios that the prosecution's lawfully-obtained
evidence does not disprove. Allowing the defendant to suggest reasons
why the prosecution failed to produce the evidence, however, is not
necessary to do that effectively, while arguing the significance of its
absence is. Closing off the prosecution's ability to raise this
subject is necessary to create the desired deterrence and inures to the
benefit of the defendant. There is no reason to allow the defendant to
raise that issue, typically by asserting not only that the prosecution
failed to produce evidence at trial, but the jury should thereby infer
that it does not exist, without presumptively allowing the prosecution
to respond. The deterrent effect does not depend upon an explanation for
the evidence's absence; indeed the ideal deliberation omits
speculation about any reason for its absence that does not bear on the
ability of the prosecution's case to eliminate reasonable doubts.

Consequently, the defendant should be able to introduce evidence
and make arguments about the importance of the missing evidence, even
when its importance might lead a jury to think its non-existence must
explain its absence--the prosecution having failed to find it.
Nevertheless, the defendant cannot ask the jury to draw that inference
directly or indirectly without opening the door. (180) This requires
little sacrifice of the defendant who can make his point without asking
the jury to speculate about reasons for its absence unrelated to the
prosecution's case as we ask them to judge it. Meanwhile,
prohibiting the defendant from offering his unrebutted explanation for
the evidence's absence prevents him from taking unnecessary
advantage of suppression. From the perspective of factfinding accuracy,
the absence of suppressed evidence at trial and proof of its
non-existence elide as argument or evidence showing the importance of
missing proof increasingly suggests the prosecution must have failed to
produce it because they did not find it. Yet from the perspective of
whether the defendant should waive his protection by asking the jury to
consider why they did not produce the evidence, all depends upon whether
the defendant confined himself to arguing inferences from the absence of
the proof. Although this allows the possibility the jury will imply from
its importance that the absent evidence was not found, the point is not
whether they are mislead to that conclusion by the absence of suppressed
evidence. That possibility always exists--and is tolerated--whenever we
exclude evidence for reasons besides factfinding accuracy. The question
is whether the defendant waives his protection against the explanation
for the suppressed evidence's absence by himself interjecting this
unnecessary issue. (181)

Consequently, while Fregoso should not introduce the exculpatory
plant material tests made with his suppressed clothing without waiving
his right to object to the inculpatory footprint analysis developed with
evidence obtained in the same unlawful search, he should be able to
prove what the criminalist collected at the scene to make concrete the
significance of the absence of trace evidence. Showing police collected
footprints and plant material at the scene, and then pointing out the
prosecution produced no evidence connecting the trace evidence to the
defendant, was proper. The defendant did not use evidence produced by
the unlawful seizure of his clothing nor argue investigators failed to
find evidence connecting him to the collected material. When he
introduces evidence the police found nothing connecting him to the
material or asks the jury so to conclude, however, he opens the door.

The waiver rule promises a clearer standard by which courts can
decide and counsel can anticipate when defense evidence or argument
justifies introduction of suppressed evidence. Whether the defendant
directly or indirectly introduces suppressed statements or physical
evidence should be clear enough. Whether counsel merely asks the jury to
consider the importance of missing evidence or to conclude the
prosecution failed to find it, or is otherwise capitalizing on the
prosecution's disability to explain the reason for its
absence--created to protect the defendant--should also be relatively
clear. Even indirect references to the reasons for the evidence's
non-production such as "You know the prosecution would produce this
evidence if it could" or "You bet it would be here if they
found it" can open the door on this view. The key for counsel is
simply to avoid argument about the reason they did not produce the
evidence and focus instead on how its absence allows for reasonable
doubt.

Moreover, as the Rogers court noted, when argument rather than
evidence potentially opens the door, a court can more easily prevent and
potentially cure the problem without admitting the suppressed evidence.
(182) For defense counsel's purposes, arguing the absence of
evidence that she establishes the jury should expect to see if the
defendant were guilty will be sufficient. If counsel takes the next step
to argue the evidence's absence supports the inference the police
failed to find it, the judge can sustain an objection and remind counsel
(outside the presence of the jury) of the consequences. If a sustained
objection is not enough to stop it, the court can also remind the jury
they are not to speculate about why they did not produce the evidence,
just evaluate the significance of its absence from the
prosecution's case. The hint of evidence outside the record on
whose absence the defendant improperly commented should be incentive
enough for counsel to refrain. As a last resort, the court can always
admit the suppressed evidence. But with a rule establishing limits that
also makes clear the wide latitude given counsel to take advantage of
the absence of suppressed evidence without opening the door, it is
unlikely it would frequently come to that.

III. THE INTEGRITY OF THE TRIAL PROCESS AND ETHICAL RULES

Although setting limits on counsel's exploitation of
evidence's exclusion justified by the purpose of the exclusionary
rule, the standard for waiving protection against admission of
suppressed evidence proposed in this Article amounts to naught if it
violates prevailing conceptions of the integrity of the trial process or
standards for attorneys' ethical conduct. The courts have
occasionally used both rationales to justify using ordinary factfinding
standards to hold the defendant opened the door to admission of
suppressed evidence. In Johnson, the court argued the integrity of the
judicial system prevented it from "allowing the defense ... to
misrepresent to the jury the actual facts of the case," and thus
excluded defense evidence it found was false after considering
suppressed proof inadmissible to rebut the defense evidence. (183) The
trial court in Fregoso held the door was opened when there was not
"any excuse" for counsel's actions "except to
mislead the jury," (184) a ruling which was affirmed on appeal with
the gloss that "[a]n attorney commits misconduct by commenting on
the adversary's failure to produce evidence the attorney knows was
excluded by the court." (185) Finally, the Rogers court also
suggested it would be improper for "a lawyer's questions
falsely [to] suggest a lack of evidence that the lawyer knows exists but
which was subject to pretrial suppression," even though it could
properly "challenge the sufficiency ... of the State's
proof" by arguing "reasonable doubt ... when evidence is
lacking.., using all reasonable inferences that might be drawn from the
evidence." (186) This Part examines those claims and concludes
neither the integrity of the trial process nor a defense lawyer's
ethical duty of candor to the tribunal prevents counsel from arguing
(and attempting to establish through proof) the prosecution's case
fails to eliminate reasonable doubt about the defendant's guilt
because of the absence of suppressed evidence. Consequently, neither
claim justifies a court's holding such actions open the door to the
suppressed evidence.

Within an evidentiary framework holding other goals sometimes trump
factfinding accuracy, the integrity of the trial process cannot
routinely require an advocate to refrain from urging a jury to reach
conclusions assisted by their ignorance of evidence that the law
excludes in pursuit of those other goals. If it did, application of any
exclusionary rules not premised on factfinding accuracy--including those
excluding plea discussions, settlements, and subsequent remedial
measures--would itself violate that integrity. When the defense lawyer
in Fregoso, for example, elicits evidence collected at the crime scene
to argue there is reasonable doubt because of the lack of proof
connecting him to the evidence collected, the jury may conclude no such
proof exists. But it might reach the same conclusion if defense counsel
elicited nothing beyond what the prosecution elicited about the
inspection of the crime scene and simply argued no physical evidence was
produced, still leaving the jury to reason about what might have been
produced, but was not. In either case, the jury might well be led to a
conclusion they would not otherwise reach were the evidence admitted.
But that is hardly to say they have been misled; we ask them to judge
the sufficiency of the prosecution's case in the absence of the
excluded evidence, and that is exactly what they have done. Defense
evidence of what was collected, if not already introduced by the
prosecution and if showing more than what the jury would already expect
to have been collected, simply allows the defendant to make more
effective, though not improper, use of the suppressed evidence's
exclusion. Of course, by asking the jury to decide without the benefit
of evidence that we would otherwise admit because of its probativity, we
"mislead" them to the extent their exclusive function is to
find the truth of what happened rather than to reach a decision based on
the evidence our law permits. But it is the latter we ask them to do
when we ask them to serve in a system where evidentiary rules
occasionally subordinate truthseeking to other values.

The integrity of the trial process applicable here has a narrower
meaning than it would have if the system were structured to serve the
single goal of finding the truth. Indeed, when the appellate court in
Fregoso affirmed because "[a]n attorney commits misconduct by
commenting on the adversary's failure to produce evidence the
attorney knows was excluded by the court," (187) it relied on a
case, People v. Varona, (188) that was inapt for many reasons. In
Varona, a prosecutor, having successfully excluded evidence an alleged
rape victim was a prostitute who worked the area where the charged rape
occurred, "argued the 'lack' of evidence [the victim
worked the area as a prostitute] where the defense was ready and willing
to produce it [and] compounded that tactic by actually arguing that the
[woman] was not a prostitute, although he had seen the official
[conviction] records and knew that he was arguing a falsehood."
(189) After finding the trial court erroneously excluded the evidence,
the appellate court concluded the prosecutor's "whole argument
went beyond the bounds of any acceptable conduct." (190) Reliance
on Verona well-illustrates the pitfalls of indiscriminately applying
ideas about what amounts to misconduct opening the door to otherwise
inadmissible evidence across contexts.

To begin with, Varona involved evidence that was improperly
excluded. That the evidence about whose absence the prosecutor commented
should have been admitted alone distinguishes Varona from cases where
evidence is properly suppressed. (191) Where the evidence about whose
absence an attorney comments was improperly excluded, the misconduct,
such as it is, simply follows from, and aggravates, the evidentiary
error. Arguing the absence of the proof per se is not misconduct absent
the wrongful exclusion of the evidence. (192) Moreover, if proper, the
exclusion of the victim's prostitution was based on reasons linked
to the evidence's probative value and capacity for prejudice
inapplicable once the prosecutor himself made an issue of her other
sexual behavior, (193) which is exactly what he did. (194) Excluding the
proof only to assert its absence when raising the issue whose closure
justifies exclusion was an attempt to have it both ways not contemplated
by the rule, even if it excluded the prostitution evidence in the first
place. (195) Finally, the prosecutor made an issue of the victim's
other sexual behavior only after it was too late for the court easily to
reverse the ruling premised on the prosecution's not doing so.
(196) Having engaged in strategic delay to make unilateral use of an
improperly applied rule which, even when properly applied, allows or
excludes evidence equally from both sides, the prosecutor surely
committed misconduct by, inter alia, commenting on the failure to
produce evidence that he had excluded. But that provides no support for
the proposition defense counsel does wrong to argue the failure to
produce evidence properly suppressed by the constitutional exclusionary
rule, whose purpose requires that the prosecution suffer adverse
inferences from the evidence's absence.

Also, Varona involved a prosecutor, not a defense lawyer. While
both, like all lawyers, are enjoined from offering evidence they
"know[] to be false," (197) their obligations differ when it
comes to ethical use of evidence--or its absence--that does not fall
into that category. A prosecutor has a special duty not to impede the
truth that does not apply to defense attorneys. (198) In fact, inasmuch
as the truth may be that a defendant is guilty, and zealous
representation nonetheless entails finding fault with the
prosecution's case, it has been said that "it is generally
agreed that defense counsel's ethical duty to represent his client
zealously includes an affirmative duty to impede the search of
truth." (199) In United States v. Wade, the Court wrote:

Law enforcement officers have the obligation to convict the guilty
and to make sure they do not convict the innocent. They must be
dedicated to making the criminal trial a procedure for the
ascertainment of the true facts surrounding the commission of the
crime. To this extent, our so-called adversary system is not
adversary at all; nor should it be. But defense counsel has no
comparable obligation to ascertain or present the truth. Our system
assigns him a different mission. He must be and is interested in
preventing the conviction of the innocent, but, absent a voluntary
plea of guilty, we also insist that he defend his client whether he
is innocent or guilty. (200)

Thus, the prosecutor's using the absence of the prostitution
evidence he excluded in Verona to suggest the victim engaged in no such
activity, and defense counsel's using the absence of physical
evidence she suppressed in Fregoso to suggest he was not at the scene
are treated quite differently, although both may impede the jury from
finding the truth. A prosecutor has an obligation to the truth to avoid
inferences disproved by excluded evidence. No obligation to refrain from
arguing inferences misdirecting the jury from the truth as indicated by
suppressed evidence requires defense counsel to avoid using its absence
to show a reasonable doubt. Verona provides no support for the Fregoso
court's claim "[defense counsel] commit[ted] misconduct by
commenting on the adversary's failure to produce evidence the
attorney knows was excluded by the court." (201) While there may be
such situations, defense counsel's arguing the absence of
suppressed evidence establishes reasonable doubt is not one of them.

The Varona court's observation that the prosecutor compounded
his error by "actually arguing the woman was not a prostitute
although he had seen the official [conviction] records and knew he was
arguing a falsehood," (202) is also inapplicable to Fregoso.
Defense counsel was hardly guilty of arguing a falsehood by pointing out
the lack of physical evidence placing the defendant at the scene. As the
Varona court recognized, pointing out the lack of evidence of a fact and
affirmatively asserting its opposite are not the same thing. (203) Even
if the asserted fact is true, it is misconduct for an attorney to put
himself in the position of being a witness by making a factual assertion
that reflects his personal knowledge or belief because it invites the
jury to speculate about off-record evidence. (204) Thus the assertion in
Varona that the victim was not a prostitute would be improper quite
apart from whether the prosecutor had successfully suppressed evidence
of her prostitution to the extent it was not supported by inferences
from evidence in the record. (205) In the absence of such proof, the
jury could not understand the assertion as an argument about what the
evidence showed or failed to show, leaving it to rely on the
prosecutor's presumed extra-record knowledge of the matter.

Defense counsel in Fregoso made no such argument. The court
acknowledged she had merely pointed out the lack of evidence of the
defendant's presence at the crime scene and did nothing to suggest
extra-record knowledge that he had not been there. Indeed, even by the
court's account, defense counsel had not phrased her argument about
a lack of physical evidence connecting the defendant to the scene
generally, rather than a lack of such evidence produced at trial. (206)
Thus the court could not have worried counsel was possibly making an
argument that was literally false (there was, in fact, some such
evidence, though not admitted) even if the distinction would be lost on
the jury instructed evidence consists only of proof admitted at trial.
(207) Thus counsel was careful in summation to argue the evidence, and
even then careful to direct her comments to the evidence produced at
trial rather than to evidence that might otherwise exist, although
unnecessary in this context. (208)

That is not to say counsel would not have crossed the line into
misconduct by asserting there was no evidence found connecting the
defendant to the scene. That claim would be literally false and
potentially construed by the jury as counsel's assertion of a fact
unsupported by a record that did not affirmatively address, much less
show, the absence of such extrajudicial proof. The misconduct, however,
is no broader than the actions discussed in the previous Part as
triggering a waiver. (209) Should counsel err, the court would need to
ask whether the error merited introduction of suppressed counter-proof
rather than interruption of the argument, unless counsel persists in his
claim. (210) A jury instructed to decide based on the evidence or lack
of evidence admitted at trial that is not speculating about the
possibility of extrajudicial proof will find no significant difference
between the claims that no evidence was found and no evidence was
produced at trial that connected the defendant to the scene. (211)
Nonetheless, counsel's repeated attempts to establish that nothing
was found should waive protection against the suppressed evidence. (212)
The integrity of the factfinding process demands as much even though
factfinding would hardly be improved. Conversely, factfinding
integrity--rather than accuracy--does not require counsel be prohibited
from arguing the inferences from the absence of suppressed evidence for
the sufficiency of the prosecution's case. As the Payne court
recognized, the integrity of the process in this context is properly
protected by preventing defense counsel from affirmatively
misrepresenting the prosecution's investigation while allowing her
to exploit suppression of its unlawful fruits. (213) The Rogers Court
had it exactly right when it said although counsel could draw all
inferences from the absence of proof to establish reasonable doubt, he
could not "falsely suggest a lack of evidence that the lawyer knows
exists." (214) The "lack of evidence" to which it
referred was the improper suggestion that evidence had not been found,
not the proper argument that, considering all reasonable inferences from
the proof, the absence of certain evidence at trial establishes
reasonable doubt. (215) As these courts show, there is no reason to
think the constitutional exclusionary rule--like other rules excluding
evidence for reasons besides probativity--cannot be part of the fabric
of factfinding integrity.

Effectively using the absence of suppressed evidence to establish
reasonable doubt also does not violate a lawyer's obligation of
candor to the tribunal. Ethical rules prohibit a lawyer from offering
evidence the lawyer "knows to be false" while allowing (though
not requiring) a lawyer to "refuse to offer evidence, other than
the testimony of a defendant in a criminal matter, that the lawyer
reasonably believes is false."216 These rules are justified, in
part, by the need to protect "the integrity of the adjudicative
process," which requires the lawyer prevent the tribunal from being
"misled by false statements of... fact or evidence that the lawyer
knows to be false." (217) While the comments, when addressing the
lawyer's responsibility to disclose a client's false
testimony, speak of "subverting the truth-finding process which the
adversary system is designed to implement," (218) the obligation
falls well short of imposing a responsibility on the defense lawyer for
the factfinder's conclusions that would prevent him from
introducing evidence or making arguments that the suppressed evidence
contradicts. (219)

First, the likelihood the suppressed evidence would rise to the
level of establishing the attorney "knows" that evidence
contradicting the suppressed proof is false is remote. "Knows"
in this context means "actual knowledge," (220) and although
that knowledge "may be inferred from circumstances," (221) it
must "ordinarily [be] based on admissions the client has made to
the lawyers." (222) In any event, no court in the cases discussed
in this Article remotely suggested counsel had engaged in an ethical
violation of this sort. Indeed, the evidence defense counsel sought to
elicit--the misidentification in Johnson, the collection of specimens in
Fregoso, even the existence of the search in Payne--was true, and the
only issue was the inference that the factfinder might draw in the
absence of contradictory, but suppressed evidence. (223) The ethical
rules do not make the defense lawyer responsible for that inference,
just as she is not responsible for furthering the quest for truth. (224)
For instance, the rules specifically do not require lawyers to avoid
presenting evidence even if they reasonably believe it (but do not know
it) to be false. (225) It merely creates an option to do so. If the
lawyer is not responsible for the factfinder's potentially
inaccurate conclusion after presenting evidence he reasonably believes
is false, it cannot follow that he is bound to refrain from presenting
truthful evidence that may mislead in the absence of suppressed
evidence.

Second, even when there is an obligation not to present testimony
because it is known to the lawyer to be false, that obligation may yield
to other goals, such as the defendant's right to testify. Thus the
rules contemplate that the defense lawyer's responsibility is not
to the accuracy of factfinding per se, but rather to the integrity of
the process designed to produce truth within boundaries sometimes
established by competing goals. The rules, for instance, clearly
distinguish between the lawyer's obligation to the
"tribunal" (226) and to the factfinder. (227) The
lawyer's responsibility ends at notifying the court of testimony he
knows to be false if the client is unwilling to cooperate in further
remedial action, leaving it to the court "to determine what should
be done--making a statement about the matter to the trier of fact,
ordering a mistrial or perhaps nothing." (228) In no event is the
defense lawyer directly responsible for the accuracy of factfinding
rather than to the court, which we charge with protecting the integrity
of an adjudicative process whose rules sometimes subordinate accurate
factfinding to other goals.

The candor-to-the-tribunal rules dovetail with trial conduct and
other ethical rules to reinforce the advocate's limited
responsibility for the outcome. The rules require advocates to avoid
making themselves witnesses in cases they argue, to avoid appearing to
have personal knowledge of events at issue in the trial, and to refrain
from making arguments beyond those supported by the evidentiary record
(which, as stated, does not contain their testimony). (229) The advocate
should not be making any statements based on personal knowledge which
the factfinder can properly consider as evidence. Consequently,
"the false statements ... of fact" (230) from which the
advocate must refrain are those made to the court in its supervisory
role; otherwise the advocate's role is not to make statements of
fact at all, unless they are statements about the evidence--in effect,
descriptions of others' statements and assertions--made while
arguing the inferences the advocate would have the factfinder draw from
them. Before the jury, the advocate is required to act as if he only has
personal knowledge of the proof adduced at trial, not of external
factual matters relevant to the case. The advocate does not violate the
duty to refrain from knowing presentation of evidence she knows, or even
reasonably believes, is false by accurately describing the evidence (or
lack thereof) and arguing its significance for deciding whether a party
has met its burden of proof. There is simply no fraud on the tribunal in
taking advantage of the absence of evidence about which the court surely
knows, having excluded it by virtue of evidentiary rules. (231) Nor is
there any fraud in truthfully asserting the absence of that evidence
while asking the factfinder to consider its absence when deciding
whether certain facts have been adequately proved. Indeed, there is
nothing in the rules suggesting there is any fraud in calling a witness
to testify to matters which, although true, support an inference
inconsistent with the excluded proof, and then to urge the factfinder to
draw the inference. Far from it; that is exactly what we should expect a
defense lawyer to do when zealously representing his client within an
adversarial system. (232)

Zealous advocacy that uses the absence of suppressed evidence to
show the weakness of the prosecution's case, but does not
affirmatively misrepresent the facts of the investigation, is consistent
with the integrity of a factfinding process that draws a prudential, but
significant line between withholding evidence from juries for a variety
of reasons and asking them to consider false proof. A prepared
investigator who participated in an illegal search knows that an
innocuous "What happened next?" question from the prosecutor
does not justify describing an illegal search, but he is not prohibited
from describing the search should defense counsel ask about it. Where
rules exclude evidence at all, including those intended only to promote
accurate factfinding, we understand the necessity of distinguishing
between a witness's telling the whole truth, and truly answering
questions while omitting inadmissible evidence unless specifically asked
about it. (233) The same distinction informs opening the door to
evidence suppressed by the exclusionary rules. Arguments urging jurors
to conclude the prosecution did not produce suppressed evidence because
investigators failed to find it entail a waiver similar to that which
would occur if defense counsel asked investigators whether they found
additional evidence. In effect, the waiver reflects a morality
appropriate to preserving the integrity of the jury's particular
role; it prevents the exclusionary rule from requiring jurors to rely on
evidence that is equivalent to testimony that could not have been given
truthfully---effectively a lie--though, by necessity, they do not get to
hear inadmissible evidence that might prevent them from inferring a
false fact. The test suggested here respects the distinction between the
equivalent of false testimony, unnecessary to accomplish
exclusion's legitimate goals, and potentially false inferences
drawn from the absence of proof, a necessary consequence of any rules
excluding relevant evidence. It is entirely consistent with the
integrity of the trial process and the ethical standards governing all
its participants. (234)

CONCLUSION

Courts holding defendants open the door to suppressed evidence by
using exclusion as a "sword" to elicit proof or make arguments
contradicted by that evidence negate the exclusionary rule's
incentive to forego unlawful investigatory steps that the Supreme Court
holds is necessary. Their reasoning applies conceptions about what opens
the door to evidence excluded for reasons of accurate factfinding that
are inapt when applied to rules justified by other goals. Whether a
party opens the door to evidence excluded by a particular rule must be a
contextual decision based on what the rule seeks to accomplish. If
acquiring evidence unlawfully benefits the prosecution by preventing the
defendant from introducing evidence or arguing inferences rebutted by
that proof, the constitutional exclusionary rule's deterrent
function is removed once the prosecution has a legally sufficient case.

Courts allowing such evidence justify their decisions by arguing
the integrity of the factfinding process requires they prevent juries
from being misled about the facts or from concluding that suppressed
evidence does not exist. The integrity of the factfinding process,
however, is protected by holding defendants waive protection against
suppressed proof by themselves using illegally-obtained evidence or by
asking jurors to consider why suppressed evidence was not produced. This
waiver rule allows the exclusionary rule to perform its deterrent
function without violating ethical standards for trial conduct or the
jury's accepted role as arbiters of the closed universe of evidence
admitted for their consideration.

(4.) See James v. Illinois, 493 U.S. 307, 318 ("The United
States argues that this result is constitutionally acceptable because
excluding illegally-obtained evidence solely from the prosecution's
case in chief would still provide a quantum of deterrence sufficient to
protect the privacy interests underlying the exclusionary rule. We
disagree.").

(7.) See Johnson, 107 Cal. Rptr. 3d at 246 ("The Miranda
holding was designed to protect the defendant. It was not intended to
give him a sword to go after the other side.").

(8.) The Court's primary justification for the exclusionary
rule is the deterrence of illegal police conduct. See, e.g., United
States et al. v. Janis, 428 U.S. 433,446 (1976) (citing United States v.
Peltier, 422 U.S. 531,536-39 (1975)) ("The Court, however, has
established that the 'prime purpose' of the rule, if not the
sole one, 'is to deter future unlawful police
conduct.'"); Tirado v. Comm'r, 689 E2d 307, 310 (2d Cir.
1982) (citing Janis, 428 U.S. at 453-54 ("[A]ny extension of the
rule beyond its core application.., must be justified by balancing the
'additional marginal deterrence' of the extension against the
cost to the public interest of further impairing the pursuit of
truth.").

(9.) For example, the decision to conduct a search in an ongoing
investigation may reflect a belief that its fruits will be useful even
if the prosecution cannot use them in its case-in-chief. Current case
law encourages that belief by teaching investigators that, routinely,
suppressed evidence, inadmissible on the prosecution's
case-in-chief, will nonetheless be useful to rebut or deter defenses.

(10.) The concept of opportunity cost in economic theory dates to
the nineteenth century. See generally David I. Green, Pain-Cost and
Opportunity-Cost, 8 Q. J. ECON. 218, 224 (1894) ("[W]hen we once
recognize the sacrifice of opportunity as an element in the cost of
production, we find that the principle has a very wide
application.").

(11.) See generally T. W. McRae, Opportunity and Incremental Cost:
An Attempt to Define in Systems Terms, 45 ACCT. REV. 315, 316 (1970)
(quoting L.M. FRASER, ECONOMIC THOUGHT AND LANGUAGE 103-04 (1937)
("The cost of a thing is simply the amount of other things which
has to be given up for its sake.... Cost value is ... merely exchange
value seen from the side of the buyer, rather than the seller.")
(internal quotation marks omitted).

(12.) 107 Cal. Rptr. 3d 228 (Cal. Ct. App. 2010).

(13.) Id. at 245.

(14.) Id. at 234, 237.

(15.) Id. at 234.

(16.) Id. at 237,244.

(17.) Id. at 245.

(18.) Id.

(19.) 493 U.S. 307 (1990).

(20.) James prevents impeachment of a witness other than the
defendant with suppressed evidence. See id. at 308-09.

(21.) CAL. EVID. CODE [section] 352 (West 2011) ("The court in
its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the
jury.").

(22.) FED. R. EVID. 403 ("The court may exclude relevant
evidence if its probative value is substantially outweighed by a danger
of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.").

(23.) In addition to Johnson's suppressed confession, the
court also knew his confederate had implicated him in the Claussen
robbery in a confession to police that was inadmissible against Johnson
pursuant to the hearsay rule and the Confrontation Clause. See People v.
Johnson, 107 Cal. Rptr. 3d 228, 246 (Cal. Ct. App. 2010).

(43.) Id. That the court was willing to base its decision on the
version of the facts it credited shows the length to which it was
willing to go to prevent admission of what it believed to be inaccurate
information. Ordinarily, courts balance the probative value of evidence
against its capacity to mislead on the assumption that the jury may
choose to credit the challenged evidence. See RONALD J. ALLEN ET AL.,
EVIDENCE: TEXT, PROBLEMS, AND CASES 143 (5th ed. 2011) (citing United
States v. Wallace, 124 F. App'x 165, 167 (4th Cir. 2005)
("[T]he credibility of a witness has nothing to do with whether or
not his testimony is probative with respect to the fact which it seeks
to prove."); 22 CHARLES A. WRIGHT & KENNETH W. GRAHAM, JR.,
FEDERAL PRACTICE AND PROCEDURE [section] 5214 (2012) (noting when
balancing probative value against prejudice and capacity to mislead the
jury, "courts do not count the witness's credibility,"
but rather "[t]he prevailing view is that evaluating the
credibility of witnesses is a matter uniquely within the competence of
the jury, and that the judge's role is to estimate the probative
value of testimony if believed.') (emphasis added).

(45.) Moreover, even if defendants are able to obtain an advance
ruling from the court about what evidence or argument opens the door to
suppressed evidence, they may waive their right to appeal by refraining
from taking the steps to invite the proof, making opening the door
decisions as unreviewable as they may be unpredictable. See Luce v.
United States, 469 U.S. 38, 43 (1984) (a criminal defendant must testify
to appeal a decision to admit the defendant's prior conviction for
impeachment); United States v. Hall, 312 F.3d 1250, 1258 (11th Cir.
2002) (defendant must elicit the adverse evidence that was deemed
admissible under Rule 404(b) on defendant's pretrial motion in
order to preserve appellate review); United States v. Wilson, 307 F.3d
596, 601 (7th Cir. 2002) (defendant's claim that the district court
violated his right to remain silent in allowing the government to
introduce evidence from defendant's "selective silence"
if defendant were to bring up issue of an associate held to be
unreviewable on appeal since defendant never introduced issue "and
cannot ... attack a potential introduction of evidence by the government
in response to his potential testimony"); United States v. Bond, 87
F.3d 695,700-01 (5th Cir. 1996) (defendant must testify to appeal in
limine ruling that his testimony would waive his Fifth Amendment
privilege); United States v. Goldman, 41 F.3d 785, 788 (1st Cir. 1994)
(defendant must testify to appeal Rule 403 and 404 rulings regarding his
potential testimony); United States v. Ortiz, 857 F.2d 900, 905-4016 (2d
Cir. 1988) (defendant must actually pursue defense at trial to appeal
ruling that uncharged misconduct is admissible if the defendant pursues
that defense); United States v. DiMatteo, 759 F.2d 831,833 (11th Cir.
1985) (a defendant's witness must testify to appeal a decision
allowing his impeachment with evidence offered under Rule 608).

(46.) See United States v. Havens, 446 U.S. 620, 626-27 (1980) (any
questions "suggested to a reasonably competent cross-examiner"
by defendant's direct testimony are permissible, allowing the
prosecutor to use suppressed evidence to impeach statements made in
response to cross-examination "reasonably suggested" by the
direct examination along with the direct testimony itself); see also id.
at 631 (Brennan, J., dissenting) (the limit on the scope of
contradiction of a defendant's testimony amounts to "nothing
more than a constitutional reflection of the common-law evidentiary rule
of relevance").

(71.) Id.; cf. Varona, 192 Cal. Rptr. at 46 ("Here the
prosecutor not only argued the 'lack' of evidence where the
defense was ready and willing to produce it, but he compounded that
tactic by actually arguing that the complaining witness was not a
prostitute, although he had seen the official records and knew that he
was arguing a falsehood.").

(79.) See Fregoso, 2008 WL 1850973, at *16-17 ("[W]hen you
argued just now to the jurors that there was no evidence presented by
the prosecutor connecting your client to the cornfield, that was based
on the ruling suppressing your client's clothing.... [T]here is
[no] excuse for what you did ... except to mislead the jury so we are
going to put on evidence.").

(84.) Although the Court has decided neither Miranda nor the Fourth
Amendment's exclusionary rule is constitutionally mandated, it is
clear that their purpose is to promote constitutional values. See, e.g.,
Withrow v. Williams, 507 U.S. 680, 702-03 (1993) (O'Connor, J.,
concurring in part and dissenting in part) ("Like the suppression
of the fruits of an illegal search or seizure, the exclusion of
statements obtained in violation of Miranda is not constitutionally
required. This Court repeatedly has held that Miranda's warning
requirement is not a dictate of the Fifth Amendment itself, but a
prophylactic rule ... [which] promotes institutional respect for
constitutional values.").

(85.) See FED. R. EVID. 404(b).

(86.) See United States v. Huddleston, 485 U.S. 681,690 (1998).

(87.) See FED. R. EVID. 403 ("The court may exclude relevant
evidence if its probative value is substantially outweighed by a danger
of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.").

(88.) For example, a defendant's prior cocaine conviction may
yield a permissible inference of knowledge of the drug's appearance
without violating the proscription against using the conviction as
character proof showing action in conformity with a predisposition to
drug possession. By not contesting familiarity with the drug's
appearance, a defendant found with cocaine may succeed in keeping the
conviction out. He may simply argue he had no knowledge that, say, the
bag containing the drug was in his possession. The judge may think using
the conviction to show the defendant knew of the bag (apart from knowing
what it contained) is impermissible character evidence, while using it
merely to show that he would recognize the contents is permissible
404(b) proof of knowledge. By focusing the defense on whether the
defendant knew of the bag and essentially conceding that, if he did, he
knew its contents, counsel diminishes the evidence's probative
value for the permissible purpose. Alternatively, counsel can contest
whether the defendant knew what the bag contained by asserting in
opening statement that the prosecution will adduce no evidence that the
defendant knew what cocaine looked like, eliciting evidence from
witnesses suggesting the defendant had reason to believe the substance
was not cocaine, or arguing on summation that the prosecution failed to
show the defendant knew it was cocaine even if he saw it. By contesting
the issue on which the excluded evidence's permissible inference is
especially probative in any of these ways, counsel has justified its
admission if it were not otherwise justified. The increase in the
evidence's probative value tilts the scale in favor of
admissibility. Cf. United States v. Hicks, 635 E3d 1063, 1070-73 (7th
Cir. 2011); United States v. Chavis, 429 F.3d 662, 673 (7th Cir. 2005)
(Cudahy, J., concurring) (contrasting the defense theory used at trial,
that the drugs were not defendant's, with the unused theory that
the defendant did not know drugs were involved, and finding that Rule
404(b)'s exception for absence of mistake applies if "I
thought [the drugs] were cough drops," but not as in the present
case where defendant argued "the drugs weren't mine").

(89.) See FED. R. EVID. 408(a).

(90.) See FED. R. EVID. 408(a) advisory committee's note.

(91.) Rule 408 was recently amended to make statements made in the
course of settlement negotiations inadmissible "to impeach by a
prior inconsistent statement or through contradiction." See id.

(92.) See id.

The amendment prohibits the use of statements made in settlement
negotiations when offered to impeach by prior inconsistent
statement or through contradiction. Such broad impeachment would
tend to swallow the exclusionary rule and would impair the public
policy of promoting settlements. See McCORMICK ON EVIDENCE at 186
(5th ed. 1999) ("Use of statements made in compromise negotiations
to impeach the testimony of a party, which is not specifically
treated in Rule 408, is fraught with danger of misuse of the
statements to prove liability, threatens frank interchange of
information during negotiations, and generally should not be
permitted."). See also EEOC v. Gear Petroleum, Inc., 948 F.2d 1542
(10th Cir. 1991) (letter sent as part of settlement negotiation
cannot be used to impeach defense witnesses by way of contradiction
or prior inconsistent statement; such broad impeachment would
undermine the policy of encouraging uninhibited settlement
negotiations).

Id.

(93.) See id.

(94.) See id.

(95.) FED. R. EVID. 407. The substance of the testimony impeached
by contradiction would have to fit one of the other exceptions contained
in the rule. See id. ("[T]he court may admit this evidence for
another purpose, such as ... proving ownership, control, or the
feasibility of precautionary measures.").

(96.) FED. R. EVID. 410; see also 2 CHRISTOPHER B. MUELLER &
LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE [section] 4:64 (3d ed. 20l 1)
("The legislative history of the original version of FED. R. EVID.
410 ... made it plain that FED. R. EVID. 410 entitled the accused to
exclude plea bargaining statements, even if offered to impeach him after
he took the stand and testified inconsistently with what he said during
plea bargaining."). However, after the Supreme Court decided United
States v. Mezzanatto, 513 U.S. 196 (1995), which held waivers of the
right to exclude statements made during plea bargaining are enforceable
the issue of impeachment largely became moot. See MUELLER &
KIRKPATRICK supra.

(97.) Cf. U.S. v. Udeagu, 110 F.R.D. 172, 175 (E.D.N.Y. 1986)
(holding statements made by defendant during his plea allocution could
not be used to impeach his credibility after his guilty plea was
withdrawn: the reason behind 410 "is clear: the incriminatory
admissions would make withdrawal of the plea nugatory since conviction
would almost surely result from a trial").

(98.) FED. R. EVID. 408(b).

(99.) See FED. R. EVID. 408 advisory committee's note
("This rule as reported makes evidence of settlement or attempted
settlement of a disputed claim inadmissible when offered as an admission
of liability or the amount of liability. The purpose of this rule is to
encourage settlements which would be discouraged if such evidence were
admissible.").

(100.) See id. ("The final sentence of the rule serves to
point out some limitations upon its applicability. Since the rule
excludes only when the purpose is proving the validity or invalidity of
the claim or its amount, an offer for another purpose is not within the
rule."); see also id. ("[S]tatements made during compromise
negotiations of other disputed claims are not admissible in subsequent
criminal litigation, when offered to prove liability for, invalidity of,
or amount of those claims. When private parties enter into compromise
negotiations they cannot protect against the subsequent use of
statements in criminal cases by way of private ordering. The inability
to guarantee protection against subsequent use could lead to parties
refusing to admit fault, even if by doing so they could favorably settle
the private matter. Such a chill on settlement negotiations would be
contrary to the policy of Rule 408.").

(104.) Id. at 808 ("[R]ecognizing the entitlement to specific
contradiction impeachment is essential to the proper functioning of an
effective adversary system of litigation.... [T]he entitlement is a
corollary of the party's fundamental right in an adversary system
to attack false or misleading unfavorable evidence presented by the
opponent.").

(108.) See id. at 825-29; see also Edward J. Imwinkelried,
Clarifying the Curative Admissibility Doctrine: Using the Principles of
Forfeiture and Deterrence to Shape the Relief for an Opponent's
Evidentiary Misconduct, 76 FORDHAM L. REV. 1295 (2007) (using principles
of forfeiture and deterrence to redefine the curative admissibility
doctrine).

(112.) See James v. Illinois, 493 U.S. 307, 319-20 (1990)
(reversing the Illinois Supreme Court's affirmance of the
defendant's conviction because the prosecutor used "illegally
obtained statements to impeach a defense witness' testimony").
Professor Daniel Capra suggested a felicitous analogy after reading a
draft of this Article: The exclusionary rule should be seen as a
"Zen counterpart" of FED. R. EVID. 804(b)(6), which admits the
hearsay statements of a person whom the defendant wrongfully prevented
from testifying. Where FED. R. EVID. 804(b)(6) admits evidence to deter
misconduct despite the evidence's unreliability, the exclusionary
rule excludes evidence to deter misconduct despite its reliability.

(124.) Id.; see also United States v. Duffy, 133 F. Supp. 2d 213,
218 (E.D.N.Y. 2001), overruled on other grounds by United States v.
Velez, 354 F.3d 190, 195 (2d Cir. 2004) (rejecting the government's
claim that allowing defendants to exclude inconsistent statements made
in plea negotiations after testifying "prevents a 'fraud on
the court.' That the Court is aware of facts which will be unknown
to the jury is not significantly different from the suppression on
constitutional grounds of a defendant's statements or other
evidence. Indeed, Rule[] ... 410, ... referred to in Mezzanatto as
creating a privilege of the defendant, specifically contemplate[s] that
statements made by a defendant during plea discussions will be excluded
at trial.").

(129.) Alternatively, the trial judge simply may have thought it
unfair selectively to introduce the exculpatory plant material evidence
and exclude the inculpatory footprint evidence, noting "because the
clothes and shoes were both suppressed, he could not 'separate the
clothing with the trace evidence ... and the shoes....'" Id.

(139.) Id. ("Standard jury instructions caution juries that
closing arguments do not constitute evidence. Ethics rules prohibit
lawyers from making improper arguments, and trial judges have the power
to prevent improper argument by granting timely objections.").

(140.) Id. at 733 n.4.

(141.) Carl Sagan popularized the aphorism "Absence of
evidence is not evidence of absence" in The Fine Art of Baloney
Detection, THE DEMON-HAUNTED WORLD: SCIENCE AS A CANDLE IN THE DARK 201,
213 (1996).

(142.) Science makes for a useful comparison. Where neither
proponent of conflicting views about a scientific hypothesis bears the
burden of proof, the absence of evidence about it is neutral, Id. at
210-11. In law, the absence of evidence weighs against the party who
bears the burden of proof.

(143.) On the importance of juror expectations, see, e.g., Old
Chief v. United States, 519 U.S. 172, 188-89 (1997); Stephen A.
Salzburg, A Special Aspect of Relevance: Countering Negative Inferences
Associated with the Absence of Evidence, 66 CAL. L. REV. 1011, 1019
(1978). On the dependence of evidence's probative value upon the
presence or absence of other evidence, see RONALD J. ALLEN ET AL.,
EVIDENCE: TEXT, PROBLEMS, AND CASES 142 (5th ed. 2011).

(144.) See Tonja Jacobi, The Law and Economics of the Exclusionary
Rule, 87 NOTRE DAME L. REV. 585, 619-23 (2011) (deterrent effect of the
exclusionary rule depends upon jurors' not inferring from gaps in
the prosecution's proof that probative evidence was excluded, and
then relying upon the existence of that extrajudicial proof, consciously
or unconsciously, when evaluating the prosecution's case).

(145.) See supra text accompanying notes 85-88.

(146.) Cf. Jacobi, supra note 144, at 630-33 (noting if the jury
were to fill "natural holes" in the prosecutor's case by
speculating about whether probative evidence was found and suppressed,
and if that speculation affects its evaluation of the prosecution's
case, deterrence would require courts to allow defense counsel to use
the absence of suppressed evidence at trial as proof that it does not
exist.).

(147.) Payne, 456 N.E.2d at 46-47.

(148.) Id. at 46 (emphasis added).

(149.) Alternatively, the jury might consider that the prosecution
failed to search for the evidence. But the significance of the gap in
the proof would not differ materially. A rational jury considering the
significance of missing evidence that it expected the prosecution to
produce should not consider failure to search any more favorably for the
prosecution by speculating that the evidence, though not produced, might
yet exist. Apparently, the prosecution in Fregoso did not think so;
while the court was concerned eliciting the plant material would create
the impression that no incriminating physical evidence was found, the
prosecution, at least at one point, complained that counsel's
eliciting the plant material without the footprints would
"'set[] up' a failure to investigate argument."
People v. Fregoso, No. F050895, 2008 WL 1850973, at * 16 (Cal. Ct. App.
Apr. 28, 2008).

(150.) The Court has frequently explained exceptions to the
exclusionary rule at trial undermine the rule's deterrent effect
when they "chill" defendants "from calling witnesses who
would otherwise offer probative evidence" or "from presenting
their best defense and sometimes any defense at all" because
"[w]henever police obtained evidence illegally, defendants would
have to assess prior to trial the likelihood that the evidence would be
admitted." See James v. Illinois, 493 U.S. 307, 314-16 (1990). An
exception that is too broad or whose application is too uncertain
engenders that effect. Id. at 315-16 (rejecting possibilities of only
allowing impeachment of defense testimony "purposely
presented" by defense counsel or in "direct conflict"
with suppressed evidence because the "inherent subjectivity"
and "ex ante uncertainty" of the tests will "chill
defendants' presentation of potential witnesses."). The
chilling effect is certain to occur if courts hold counsel's
exploiting the absence of suppressed evidence opens the door to its
admission whenever the jury might infer from the importance of the
missing evidence that it must not have been found because effective
exploitation will always highlight the importance of the missing proof.

(155.) See United States v. Duffy, 133 F. Supp. 2d 213, 216
(E.D.N.Y. 2001), overruled on other grounds by United States v. Velez,
354 F.3d 190. Defense counsel would be hamstrung even though the waiver
in Duffy was arguably narrower than that in Velez because the former
allowed rebuttal of "factual assertions" while the latter also
permitted rebuttal of counsel's "arguments." Compare
Duffy, 133 F. Supp. 2d at 214, with Velez, 354 F.3d at 192.

(156.) Duffy, 133 F. Supp. 2d at 216.

(157.) Advancing a theory of factual innocence includes suggesting
an innocent factual scenario the prosecution's proof does not
disprove beyond a reasonable doubt. It is therefore equivalent to
advancing a theory of factual inadequacy enabled by the absence of the
excluded evidence. That is precisely the reason why the
prosecution--when it can--demands permission to use excluded evidence to
rebut defense counsel's statements even though they do not
constitute evidence. See supra notes 115-20 and accompanying text.

(158.) James v. Illinois, 493 U.S. 307, 319 (1990) (declining to
allow impeachment of witnesses besides the defendant with suppressed
evidence because "expanding the exception to encompass the
testimony of all defense witnesses would not further the truth-seeking
value with equal force but would appreciably undermine the deterrent
effect of the exclusionary rule").

(159.) James v. Illinois, 493 U.S. at 319 ("[M]uch if not most
of the time, police officers confront opportunities to obtain evidence
illegally after they have already legally obtained (or know that they
have other means of legally obtaining) sufficient evidence to sustain a
prima facie case. In these situations, a rule requiring exclusion of
illegally obtained evidence from only the government's case in
chief would leave officers with little to lose and much to gain by
overstepping constitutional limits on evidence gathering. Narrowing the
exclusionary rule in this manner, therefore, would significantly
undermine the rule's ability 'to compel respect for the
constitutional guaranty in the only effectively available way--by
removing the incentive to disregard it.' Elkins v. United States,
364 U.S. 206, 217 (1960). So long as we are committed to protecting the
people from the disregard of their constitutional rights during the
course of criminal investigations, inadmissibility of illegally obtained
evidence must remain the rule, not the exception.").

(160.) This result is required by James's injunction to
prevent the prosecution from using illegally-obtained evidence to deter
defenses (James v. Illinois, 493 U.S. 307, 314-15 (1990)), a goal that
requires jurors--if they are to speculate about why evidence was not
produced--to equate the absence of evidence with its nonexistence rather
than to infer that it was found and excluded. Tonja Jacobi, The Law and
Economics of the Exclusionary Rule, 87 NOTRE DAME L. REV. 585,630-33
(2011).

(161.) The argument of this Part is similar to that applied by
Richard L. Marcus to waiving the attorney-client privilege in The Perils
of Privilege: Waiver and the Litigator, 84 MICH. L. REV. 1605 (1986).
Professor Marcus argues one can explain waivers of the attorney-client
privilege only by recognizing that courts sometimes err by relying on
"the unfairness of having a privilege, rather than the unfairness
of the act relied upon, to show a waiver." Id. at 1630. The
argument aptly captures some courts' misuse of truth seeking to
hold that defendants open the door to suppressed evidence by making it
particularly probative. Although Marcus is skeptical of "using the
purposes of the privilege to decide waiver issues," and would have
courts shift focus from "purposes of the privilege to purposes for
waiver--to protect against unfairness," his argument acknowledges
that it is critical to prevent courts from defining unfairness to
undermine the purpose of excluding the evidence in the first place, Id.
at 1619, 1627. To that extent, the purpose of the privilege is
paramount.

(164.) Cf. Marcus, supra note 161, at 1629 30 (waiver of
attorney-client privilege should depend on whether privilege-holder
seeks to make selective use of privileged material, not on whether he
"raise[s] certain legal or factual issues" justifying loss of
the privilege as the "price" of doing so). Marcus uses Judge
Learned Hand's distinction between application of an evidentiary
privilege legitimately to "suppress" or improperly to
"garble" the truth to help explain the unfairness of
selectively using excluded evidence. Id. at 1627 (citing United States
v. St. Pierre, 132 F.2d 837, 840 (2d Cir. 1942)). While helpful, the
distinction is hardly self-evident in various contexts and cannot fully
justify an "Opening the Door" policy, which ultimately depends
on whether the reasons for excluding particular types of evidence
justify either consequence for the truth. See infra notes 167, 173 and
accompanying text.

(166.) We do not prevent a defendant from electing not to challenge
an unlawful search or interrogation to preserve exclusion's
deterrent effect on future violations.

(167.) U.S. CONST. amends. IV, V, V1. The Court has rejected the
argument that deterring government misconduct requires imposing
penalties beyond eliminating benefits from obtaining the proof when
their prospect is likely to affect investigators' future conduct.
See Harris v. New York, 401 U.S. 222, 225 (1971) (suppression
unjustified when the likelihood that admissibility of illegally-obtained
evidence would encourage police misconduct is but a "speculative
possibility.").

(168.) A similar result flows from a conception of the exclusionary
rule as primarily concerned with restoring the status quo ante before
the violation rather than deterring future violations. See Jerry E.
Norton, The Exclusionary Rule Reconsidered: Restoring the Status Quo
Ante, 33 WAKE FOREST L. REV. 261 (1998) (noting the purpose of the
exclusionary rule is to put the state and the accused in the positions
they would have been had the Constitution not been violated--neither
better nor worse).

(173.) This is a necessary consequence of the holding in James v.
Illinois, 493 U.S. 307 (1990), that deterrence requires defense evidence
besides the defendant's testimony to be immune from rebuttal with
illegally-obtained evidence, however misleading the former may be in the
absence of the latter. See supra text accompanying notes 27-30.

(174.) Nor is this result easily explained by the distinction
between consequences of excluding evidence that merely
"suppress" rather than "garble" the truth. See supra
note 164.

(175.) People v. Payne, 456 N.E.2d 44, 49 (111. 1983). Payne's
search was initially considered lawful because the trial court found
probable cause to arrest, but it suppressed the weapons found in the
refrigerator because they were not in an area within Payne's
immediate control, (Id).

(176.) See United States ex rel. Castillo v. Fay, 350 E2d 400,
402-03 (2d Cir. 1965) (holding improper, but not constitutionally
prohibited, for prosecution to elicit the search of defendant's
apartment and say that "something" (but not what) was found,
implying that incriminating evidence had been suppressed).

(177.) Payne, 456 N.E.2d at 47.

(178.) Id. (emphasis added).

(179.) Id.

(180.) Again, this result is not explained by the distinction
between consequences of excluding evidence that merely
"suppress" rather than "garble" the truth. See supra
note 164.

(181.) By asking the jury to conclude that no proof was found, the
defendant asks it to find a fact whose support is enabled only by the
evidence's suppression, making it roughly equivalent to selectively
using evidence produced by government illegality. Similar examples
include instances in which a defendant, rather than avoid mentioning a
suppressed interrogation, introduces evidence of what he told the police
during the interrogation. See Doyle v. Ohio, 426 U.S. 610, 619 n. 11
(1976) (prosecution may use defendant's post-Miranda silence if the
defendant claimed "to have told the police the same version upon
arrest [as that offered at trial]," even though such silence would
otherwise be inadmissible to impeach the defendant's testimony);
Groshart v. United States, 392 F.2d 172, 178 n.4 (9th Cir. 1968)
(implying in dicta even the prohibition on impeachment use of illegal
statements yields "where the defendant's testimony puts in
issue the very question of what he told the police") (quoting
United States v. Armetta, 378 E2d 658,662 (2d Cir. 1967)); Hunt v. Cox,
312 E Supp. 637,641-43 (E.D. Va. 1970) (reasoning defendant's
post-arrest silence admissible to rebut defendant's testimony that
he had offered an alibi to police at the time of his arrest).

(191.) See, e.g., People v. Daggett, 275 Cal. Rptr. 287 (Cal. Ct.
App. 1990) (asserting the prosecutor improperly misleads the jury by
asking the jurors to draw an inference they might not have drawn if they
had heard the evidence the judge erroneously excluded); cf. People v.
Herrera, No. E051246, 2011 WL 2120214 (Cal. Ct. App. May 31,2011)
(holding it was not improper for prosecutor to argue the jury did not
hear evidence the defendant chose not to introduce after the court
deterred ruling on its admissibility rather than erroneously excluded
the evidence).

(192.) Herrera, No. E051246, 2011 WL 2120214, at *10 (asserting it
is permissible to argue the absence of evidence that the defendant chose
not to present).

(193.) See State v. Williams, 477 N.E.2d 221,228 (Ohio Ct. App.
1984) (finding where alleged forcible rape victim testified on direct
examination that as a lesbian she never consented to sexual intercourse
with men, thereby putting her own sexual past at issue, the
defendant's Sixth Amendment right to confront witnesses against him
was violated as such right outweighed the interests of the state in
excluding this type of evidence. Furthermore, "as the victim put
her own sexual past in issue on direct examination, she waived the
protections of [the rape shield laws] as far as any evidence of her past
sexual conduct which was directly probative of and relevant to a
material element of the charged crime.").

(194.) People v. Varona, 192 Cal. Rptr. 44, 46 (Cal. Ct. App.
1983).

(195.) See discussion supra notes 85-88.

(196.) The prosecutor's assertions were not made until
summation. See Varona, 192 Cal. Rptr. at 46.

(197.) MODEL RULES OF PROF'L CONDUCT R. 3.3 (2012).

(198.) Bennett L. Gershman, The Prosecutor's Duty to Truth, 14
GEO. J. LEGAL ETHICS 309, 316 (2001). This duty is "special"
in that it is unique to prosecutors. See id. at 316 n.38 (citing United
States v. Wade, 388 U.S. 218, 256-58 (1967) (White, J., concurring in
part & dissenting in part)).

(199.) Id. (citing United States v. Wade, 388 U.S. 218,256-58
(1926) (White, J., concurring in part & dissenting in part)).

(200.) United States v. Wade, 388 U.S. 218, 256-57 (1967) (White,
J., concurring in part & dissenting in part).

(203.) Id. (arguing the victim was not a prostitute compounded the
error in arguing the lack of evidence of prostitution).

(204.) See, e.g., United States v. Cotter, 425 F.2d 450, 452 (1st
Cir. 1970) ("Essentially, the prosecutor is to argue the case. He
may discuss the evidence, the warrantable inferences, the witnesses, and
their credibility. He may talk about the duties of the jury, the
importance of the case, and anything else that is relevant. He is not to
interject his personal beliefs. The prosecutor is neither a witness, a
mentor, nor a 'thirteenth juror....'"); Greenberg v.
United States, 280 F.2d 472, 475 (1st Cir. 1960) ("To permit
counsel to express his personal belief in the testimony (even if not
phrased so as to suggest knowledge of additional evidence not known to
the jury), would afford him a privilege not even accorded to witnesses
under oath and subject to cross-examination. Worse, it creates the false
issue of the reliability and credibility of counsel. This is peculiarly
unfortunate if one of them has the advantage of official backing. The
resolution of questions of credibility of testimony is for impartial
jurors and judges. The fact that government counsel is, as he says, an
advocate is the very reason why he should not impinge upon this
quasi-judicial function. We believe the canon to be elemental and
fundamental."); see also NEW YORK RULES OF PROF'L CONDUCT R.
3.4(d)(4) (2012) ("A lawyer shall not ... assert personal knowledge
of facts in issue except when testifying as a witness.'); MODEL
RULES Or PROF'L CONDUCT R. 3.4 (2012) ("A lawyer shall not ...
(e) ... assert personal knowledge of facts in issue except when
testifying as a witness, or state a personal opinion as to the justness
of a cause, the credibility of a witness, the culpability of a civil
litigant or the guilt or innocence of an accused...."). See
generally James W. Gunson, Prosecutorial Summation: Where is the Line
Between "Personal Opinion" and Proper Argument ?, 46 ME. L.
REV. 241 (1994).

(205.) It is improper for counsel to sum up on evidence beyond that
admitted at trial. See, e.g., United States v. Quinn 467 F.2d 624, 627
(8th Cir. 1972) ("It is well settled that the arguments of counsel
must be confined to the issues of the case, the applicable law,
pertinent evidence, and such legitimate inferences as may properly be
drawn.") (citing Wakaksan v. United States, 367 F.2d 639, 646 (8th
Cir. 1966)). These rules are all versions of the idea that attorneys
must confine their arguments to the world of evidence admitted at trial.

(207.) See JOHN S. SIFFERT ET AL., 1-2 MODERN FEDERAL JURY
INSTRUCTIONS-CRIMINAL [section] 2.01 (Matthew Bender 2012) ("The
evidence before you consists of the answers given by witnesses--the
testimony they gave, as you recall it--and the exhibits that were
received in evidence .... You may also consider the stipulations of the
parties as evidence."); PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE
DISTRICT COURT OF THE FIRST CIRCUIT [section] 3.04 (2012) ("The
evidence from which you are to decide what the facts are consists of
sworn testimony of witnesses, both on direct and cross-examination,
regardless of who called the witness; the exhibits that have been
received into evidence; and any facts to which the lawyers have agreed
or stipulated.... You are permitted to draw from facts that you find to
have been proven such reasonable inferences as you believe are justified
in the light of common sense and personal experience.").

(208.) Since the jury is instructed evidence consists of that
admitted at trial, it is usually redundant for counsel to refer to
evidence "received at trial."

(219.) I am assuming here the suppressed evidence does not rise to
the level of establishing that the attorney "knows" the
evidence contradicting the suppressed proof is false, as would rarely be
the case. See infra notes 220-22 and accompanying text. Moreover,
"false" in this context generally refers to the evidence
itself rather than to the inferences that may be drawn from it. So the
cases focus on a lawyer's knowledge of a witness's perjury,
not on whether a witness's truthful testimony might induce the
factfinder to reach a false conclusion. See infra notes 223-25 and
accompanying text.

(223.) "False" in this context thus refers to the
evidence itself rather than to the inferences that may be drawn from it.
So the cases focus on a lawyer's knowledge a witness has testified
or intends to testify falsely, not on whether his testimony might induce
the factfinder to reach a potentially false conclusion in the absence of
other evidence.

(224.) See supra text accompanying note 210.

(225.) MODEL RULES OF PROF'L CONDUCT R. 3.3 (2012).

(226.) See MODEL RULES OF PROP'L CONDUCT R. 1.0(m) (2012)
("'Tribunal' denotes a court, an arbitrator in a binding
arbitration proceeding or a legislative body, administrative agency or
other body acting in an adjudicative capacity.").

(227.) See, e.g., Salazar v. Patel, No. 00CECG 11130, 2007 WL
2019803, at * 11 (Cal. Ct. App. July 13, 2007) (distinguishing between
judge, which is encompassed within term 'tribunal" under Rule
3.3, and jury, which as fact-finder, is not).

(234.) Recently, Professor Pettys argued that the exclusionary rule
violates Kantian morality because withholding evidence interferes with
jurors' moral integrity as autonomous actors. See Todd E. Pettys,
Instrumentalizing Jurors: An Argument Against The Fourth Amendment
Exclusionary Rule, 37 FORDHAM URB. L.J. 837 at 844, 854 (2010)
[hereinafter Pettys, Instrumentalizing Jurors]; Todd E. Pettys, The
Immoral Application Of Exclusionary Rules, 2008 WIS. L. REV. 463 at
480-86, 508 [hereinafter Pettys, Immoral Application]. He thus equates
withholding evidence from jurors with lying to them, in violation of
Kant's categorical imperative. See Pettys, Instrumentalizing
Jurors, supra at 849; Pettys, Immoral Application, supra at 468
("[J]urors possess a moral right to see and hear all of the
relevant, readily available evidence."). It is hardly clear that
Kant would agree, even at his most categorical. As Professor Mahon
points out, Kant's "duty to be truthful is not the duty to be
candid," and so "does not cover what is sometimes called
'a lie of omission.'" James E. Mahon, Kant on Lies,
Candour and Reticence, 7 KANTIAN REV. 101, 123 (2003). So even if Kant
is correct that one ought not lie to a murderer about the location of
his intended victim, he also argues that there is no duty to provide him
with that information, even in circumstances where one knows that, in
its absence, the murderer will reach a false conclusion about his
victim's whereabouts. See id. ("The duty to be truthful..,
does not prohibit engaging in non-mendacious linguistic deception when
the goal is ... to avert an evil."). Mahon reads Kant as
distinguishing the categorical duty not to lie from the absence of a
categorical duty to provide information, even where necessary to prevent
the putative recipient from reaching a false conclusion, a position
consistent with the integrity of our trial process which includes rules
excluding relevant evidence.

James L. Kainen, Professor of Law and Brendan Moore Chair in
Advocacy, Fordham University School of Law. Thanks to participants in
the Fordham Law School Faculty Colloquium (especially Dan Capra) for
comments and to Joshua Mitts and Katherine Rudish for research
assistance. [c] 2013, James L. Kainen.

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